Misclassification and Indigenous Continuity: Charity Regulation, Settlement Law, and the Limits of Legal Categories

by The Panda

Opinion

Practitioner’s Introduction

This article is written for legal practitioners, charity trustees, regulators, and advisers who operate at the intersection of domestic regulation and international law. It addresses a problem that arises not from bad faith or regulatory neglect, but from category error: the use of legal classifications that are ill-suited to the identities and activities they are asked to govern.

Recent scrutiny of UK charities operating in or connected to the Occupied Palestinian Territories has exposed a recurring tension in charity compliance practice. Trustees are required to assess legality, public benefit, reputational risk, and alignment with international legal norms. Yet the frameworks available to them—drawn from charity law, international humanitarian law, and human rights discourse—are structurally oriented toward state action, territory, and sovereignty. They are far less capable of accounting for non-statist civilisational continuity, particularly where education, culture, and communal transmission are inseparable from place.

For practitioners, this creates real difficulties. Decisions are made under conditions of heightened scrutiny, media pressure, and geopolitical sensitivity, often with limited conceptual tools for distinguishing between unlawful political activity and lawful charitable support for education or culture. The risk is not merely regulatory error, but over-compliance: the defensive exclusion of otherwise lawful charitable activity due to misclassification.

This article does not argue against the application of international humanitarian law, nor does it seek to shield any activity from legal scrutiny. Rather, it invites practitioners to recognise the limits of existing legal categories, and to consider how misclassification can distort risk assessment, public benefit analysis, and regulatory legitimacy. By drawing on comparative jurisprudence, charity law doctrine, and legal philosophy, the article aims to provide a clearer analytical lens for those tasked with making difficult decisions in contested legal terrain.

Introduction

Recent reporting has highlighted that two UK-registered charities donated substantial sums to an educational institution located in the Israeli settlement of Susya in the occupied West Bank.¹ The ensuing controversy has centred on whether UK charity law permits funds to support institutions situated in territory widely regarded under international law as occupied. Regulatory scrutiny has focused on territorial status, reputational risk, and compliance with international humanitarian law.

This debate, however, reveals a deeper jurisprudential problem. The prevailing regulatory framework assumes that Jewish presence beyond the Green Line is properly analysed through the paradigm of “settlement” as an extension of state policy. It does not ask whether charitable activity might instead support what beneficiaries understand as indigenous civilisational continuity. The law, therefore, risks misclassification: collapsing distinct forms of identity and belonging into a single statist category. This article argues that such misclassification exposes conceptual limits within UK charity regulation and raises broader questions about how legal systems recognise—or fail to recognise—forms of continuity that precede modern sovereignty.

Charity Regulation and Occupied Territory

Under the Charities Act 2011, trustees must ensure that charitable funds are applied exclusively for charitable purposes and for the public benefit.² Where activities occur overseas, trustees must also assess legal compliance, operational control, and reputational risk.³ The Charity Commission has emphasised that work in disputed or occupied territories is not unlawful per se, but requires enhanced due diligence and risk management.⁴

In the present controversy, scrutiny has centred on the location of the beneficiary institution and the international legal status of Israeli settlements in the West Bank. Article 49(6) of the Fourth Geneva Convention prohibits an occupying power from transferring parts of its own civilian population into occupied territory.⁵ The United Kingdom has consistently stated that Israeli settlements in the Occupied Palestinian Territories are contrary to international law.⁶

Yet charity law does not adjudicate sovereignty. Its inquiry is directed at trustee conduct: whether funds are applied lawfully, within charitable objects, and for the public benefit. The difficulty arises when territorial status becomes a proxy for substantive analysis. Where geography substitutes for inquiry into purpose, law risks regulating by assumption rather than by assessment.

The Religious–Secular Binary and the Politics of Translation

Public discourse often frames such donations as support for “religious Zionist settlers”, implying ideological alignment with expansionist state policy. This framing relies on a religious–secular binary that obscures the complexity of Jewish identity. It reduces civilisational continuity to political ideology and treats all Jewish presence beyond the Green Line as an instrument of modern nationalism.

Such binaries are neither descriptively neutral nor analytically precise. Jewish attachment to land predates the modern nation-state and is embedded in law, liturgy, and collective memory. Hasidic social thought, in particular, has explicitly sought to transcend conventional polarities between tradition and progress, mysticism and society, and religion and science.⁷ To categorise educational institutions serving communities that understand themselves as indigenous solely as “religious settlement infrastructure” is therefore to translate lived continuity into an external political vocabulary. That translation may facilitate administrative clarity, but it risks conceptual distortion.

The question is not whether international humanitarian law applies; it plainly does. The question is whether the classificatory lens through which charitable activity is assessed adequately distinguishes between political expansion and cultural or educational continuity.

Comparative Jurisprudence: Mabo and the Recognition of Continuity

Comparative jurisprudence illustrates how legal systems may misclassify continuity when constrained by inherited categories. In Mabo v Queensland (No 2), the High Court of Australia rejected the doctrine of terra nullius and recognised that native title could survive the assertion of Crown sovereignty.⁸ Native title was not created by statute; it was recognised as pre-existing and continuous.

The significance of Mabo lies not in its doctrinal transferability to other jurisdictions, but in its conceptual shift. The Court acknowledged that the common law had failed to perceive a pre-existing normative relationship to land because its categories were too narrow. Where law recognises only sovereignty and title derived from the state, it risks erasing continuity that precedes and exceeds the state.

International humanitarian law operates through the paradigm of occupation and state responsibility. It does not currently contain a mechanism for recognising competing indigenous claims within occupied territory. That structural limitation, however, does not eliminate the conceptual problem. If charitable funding supports education and communal transmission rather than state-directed population transfer, the regulatory classification warrants careful scrutiny.

Public Benefit and Aboriginal Civilisational Continuity

Charity law’s central test remains public benefit.⁹ Educational institutions that preserve language, culture, and communal continuity ordinarily satisfy this requirement. The mere fact of a geographical location in a disputed territory does not automatically negate an educational purpose.

In this context, the term “indigenous” may understate the nature of the identity at issue. Comparative legal thought distinguishes between indigenous claims mediated through modern rights frameworks and what may more precisely be described as aboriginal civilisational continuity: a form of belonging grounded in pre-sovereign normative life and transmitted independently of state recognition.¹⁰ Such continuity is not constituted by sovereignty; it persists irrespective of recognition.

Where regulatory frameworks treat all charitable activity in such contexts as presumptively suspect, they risk adopting an over-inclusive approach that conflates identity with illegality. This does not require courts or regulators to adjudicate sovereignty claims. It requires them to distinguish carefully between support for unlawful activity and support for cultural or educational continuity. Without such precision, regulation risks becoming administratively efficient but conceptually blunt.

Ethics, Responsibility, and the Limits of Legal Categories

The controversy surrounding UK charitable donations to institutions in the West Bank exposes more than a geopolitical dispute. It reveals the limits of legal categories when confronted with civilisational identities that do not map neatly onto modern state-centred frameworks.

International humanitarian law regulates occupation; charity law regulates public benefit and trustee conduct. Neither framework is designed to resolve metaphysical claims. Yet both risk misclassification when territorial analysis substitutes for substantive inquiry into purpose and effect. Proceedings before the International Court of Justice, including South Africa v Israel, operate at the level of sovereign responsibility under treaty law and necessarily translate complex forms of belonging into categories legible to public international law.¹⁴

Modern rights discourse, for all its achievements, often abstracts individuals from the traditions that sustain them. It protects identity as an object of entitlement, but struggles to recognise continuity as a mode of ethical life.¹¹ The result can be a managerial form of regulation in which compliance displaces attentiveness to lived normativity.

As Emmanuel Levinas reminds us, ethics precedes systematisation. Responsibility to the Other arises before and beyond our categories of governance.¹² Where law reduces living continuity to administrable abstractions, it risks mistaking continuity for transgression. The task is not to suspend legal scrutiny, but to refine it—so that regulation protects without erasing, and judges without totalising.

Footnotes (OSCOLA)

1. Haroon Siddique, ‘Two UK charities donate millions to Israeli settlement in occupied West Bank’ The Guardian (18 July 2025) https://www.theguardian.com/society/2025/jul/18/two-uk-charities-donate-millions-israeli-settlement-occupied-west-bank accessed 16/02/2026.

2. Charities Act 2011, ss 2–4.

3. Charity Commission for England and Wales, Charities: how to manage risks when working internationally (gov.uk, 10 May 2013) https://www.gov.uk/guidance/charities-how-to-manage-risks-when-working-internationally accessed 16/02/2026.

4. ibid.

5. Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950)75 UNTS 287 (Fourth Geneva Convention), art 49(6).

6. Foreign, Commonwealth and Development Office, ‘Occupied Palestinian Territories: UK position’ (gov.uk) https://www.gov.uk/government/news/occupied-palestinian-territories accessed 16/02/2026.

7. Philip Wexler, Eli Rubin and Michael Wexler, Social Vision: The Lubavitcher Rebbe’s Transformative Paradigm for the World (Crossroad Publishing, 2019).

8. Mabo v Queensland (No 2) (1992) 175 CLR 1 (HCA).

9. Charities Act 2011, s 4.

10. For comparative analysis of Aboriginal continuity and pre-sovereign normativity, see Mabo (n 8).

11. Costas Douzinas, The End of Human Rights (Hart Publishing 2000).

12. Emmanuel Levinas, Totality and Infinity: An Essay on Exteriority (trans Alphonso Lingis, Duquesne University Press, 1969).

13. Emmanuel Levinas, Otherwise than Being: Or Beyond Essence (trans Alphonso Lingis, Duquesne University Press, 1998).

14. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (South Africa v Israel) (Provisional Measures) (International Court of Justice, Order of 26 January 2024) https://www.icj-cij.org/case/192 accessed 16/02/2026.