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Is renewing US funding to the PA legal under US law?

Maurice Hirsch, Adv.  |

Numerous pieces of US legislation limit US aid to the Palestinian Authority:

  • The Consolidated Appropriations Act, 2016 limited US aid to the PA by deducting an amount equivalent to the PA payments to terrorist prisoners and the families of dead terrorists from the annual allocation.

  • The Taylor Force Act, 2018 limited all US aid to the PA given via the Economic Support Fund, until the PA completely abolishes its terror reward payments and meets other conditions.

  • The Anti-terrorism Clarification Act, 2018 forced the PA to choose between supporting terror or receiving US aid. The PA chose terror support.

  • The Anti-Terrorism Act, 1987, inter alia, designated the PLO as a terror organization and consequently limits the use of US aid given to the PA.  

  • The Consolidated Appropriations Act, 2014 also limited US Economic Support Fund aid, if the PA initiates or actively supports an ICC investigation against Israel. The PA has initiated such an investigation and is actively supporting it.

  • The Palestinian Anti-Terrorism Act, 2006 would limit US aid to the PA if any PA government were to include members or representatives of the terror organization Hamas.

  • US aid to UNRWA is not limited by US law.

United States Secretary of State Antony Blinken announced yesterday on his Twitter account that “The U.S. is providing more than $360 million of urgent support for the Palestinian people. We will galvanize the international community to make more aid available for humanitarian and development efforts.” [Twitter, May 26, 2021]

The announcement follows the April 7, 2021 decision of United States President Joe Biden to renew US aid to the Palestinians - in the amount of $235 million for financial year 2021.

Following the announcement of President Biden, a press release issued from the office of Palestinian Authority Prime Minister Muhammad Shtayyeh, summed up the PA response:

“Prime Minister Dr. Mohammad Shtayyeh welcomed today's announcement by US Secretary of State Antony Blinken to resume aid to the United Nations Relief and Works Agency for Palestinian Refugees (UNRWA), estimated at $150 million annually, and support for development projects in the West Bank and the Gaza Strip, estimated at $75 million, which will come into effect during the last quarter of this year. This is in addition to strengthening the process of law enforcement and justice in occupied Palestine, as all such aid ceased during Trump’s presidency.”   

[Website of PA PM, April 8, 2021]

The lackluster PA response to the dramatic decision to renew the US aid that had been frozen for 3 years, was, to a great extent, due to the fact that the PA is prevented by several, concurrently relevant, pieces of US legislation from directly benefitting from the aid.   

The prevalent narrative is that US President Donald Trump was responsible for the cessation of US aid to the PA. In reality, US legislation, mostly adopted by the administration of then President Barack Obama, entrenched limits on the US aid if the PA continued with certain practices - such as the continued implementation of the PA’s ‘Pay-for-Slay’ policy - or adopted new ones - such as initiating and supporting an investigation against Israel launched by the International Criminal Court.

At a conference held by the Palestine Economic Policy Research Institute, the Director-General and Chairman of the Board of Directors of the Sinokrot Global Group and former PA Minister of Economy, Mazen Sinokrot, emphasized that “Palestine needs the American aid”, but bemoaned US legislation that conditions the aid on the PA abolishing its terror reward payments. This condition, according to Sinokrot, is a condition that causes “harm the Palestinian people’s honor.” Sinokrot continued:

“The Taylor Force Act which was ratified in the previous term of [US President Donald] Trump and determines that the American aid will be stopped to the Palestinian administration if it continues to pay the prisoners and Martyrs’ salaries – is a discriminatory law that is unfair towards the State of Palestine… it constitutes a stumbling block for American-Palestinian ties in the future.”

[Official PA daily Al-Hayat Al-Jadida, April 29, 2021]

Speaking at the same conference, PA PM Shtayyeh’s advisor, Dr. Estephan Salameh, bemoaned the fact that while the US was historically the largest donor to the PA, that role is now being fulfilled by Germany. Explaining the change, from his point of view, Salameh continued:

“This reflects the impact of many discriminatory American laws regarding Palestine, including the Anti-‘Terrorism’ Act of 1987 that considered the PLO as a terror organization from that time on – which has interfered and continues to interfere in the arrival of aid to Palestine.”

[Official PA daily Al-Hayat Al-Jadida, April 29, 2021]

Salameh concluded by recommending to change the “American laws that are unfair towards Palestine, and especially the ‘Anti-Terrorism’ Act, as a central issue, because this matter limits and restricts the reception of aid…”

Despite having been given every opportunity to abandon its malignant practices, the PA and its leadership has consistently flouted the US calls, all too commonly crying “victimization”, rather than taking responsibility for their own actions.      

The US aid to the United Nations Relief and Works Agency for Palestine Refugees (UNRWA) is different. Despite the billions of dollars of aid UNRWA has received, no Palestinian refugees have been settled. In fact, since 1948 the number of Palestinian refugees registered with UNRWA has grown by 800%. Since UNRWA proved to be a bottomless pit that will require ever-growing resources, then President Trump decided to cease US aid to the agency, pending a thorough review of the goals of the aid.  

In order to provide a clearer understanding on this subject, the following is an overview of US aid to the PA and UNRWA.

US-PA bilateral aid

While US aid to the Palestinians has taken many forms over the last two and a half decades, it can be roughly divided into two categories: US aid for the use and benefit of the PA (bilateral aid); and US aid given to UNRWA.

According to a 2018 Congressional Research Service report, bilateral aid to the Palestinians since 1994 - the start of the implementation of the Israeli-Palestinian peace process (the Oslo Accords) - has totaled more than $5 billion. According to the same report, US aid to UNRWA since 1950 has totaled over $6 billion, of which $4,499.7 billion has been donated since 1994.   

For the most part, US bilateral aid to the Palestinians is divided into three categories: Aid provided from the Economic Support Fund (ESF); aid provided for International Narcotics Control and Law Enforcement (INCLE); and aid provided for Nonproliferation, Anti-terrorism, Demining and Related Programs (NADR).

The ESF aid accounts for the vast majority of the aid. Therein lies the dismay of the PA and its leadership.

US aid reduced due to PA “Pay-for-Slay” policy

Since its creation, the PA has been paying monthly salaries to imprisoned and released terrorists and allowances to the families of dead terrorists, or so-called “Martyrs.” These payments are collectively known as the PA’s ”Pay-for-Slay” policy. The payment of the PA salaries to the terrorist prisoners is entrenched in the 2004 PA Law of Prisoners and Released Prisoners. The payment of the allowances to the families of the dead terrorists is entirely financed by the PA, but is codified by internal Palestine Liberation Organization (PLO) documents.  

When Palestinian Media Watch first uncovered the PA policy of paying salaries to terrorists, PMW immediately presented its report to Congress at meetings in Washington on July 26, 2011. Following numerous follow up reports and presentations by PMW, the administration of then President Barack Obama decided to adopt legislation.  The legislation limited the ESF aid to the PA by deducting the amount the PA spent on its “Pay-for-Slay” payments in the previous year from the aid provided in the following year.

The first provision of this nature became law in December 2015, as part of the Consolidated Appropriations Act, 2016 which provided as follows:

“The Secretary of State shall reduce the amount of assistance made available by this Act under the heading ‘‘Economic Support Fund’’ for the Palestinian Authority by an amount the Secretary determines is equivalent to the amount expended by the Palestinian Authority as payments for acts of terrorism by individuals who are imprisoned after being fairly tried and convicted for acts of terrorism and by individuals who died committing acts of terrorism during the previous calendar year: Provided, That the Secretary shall report to the Committees on Appropriations on the amount reduced for fiscal year 2016 prior to the obligation of funds for the Palestinian Authority.”

Shortly after, in March 2016, Taylor Force, a US citizen and West Point graduate who served tours of duty in the war on terror in both Afghanistan and Iraq, was murdered by a Palestinian terrorist in Tel Aviv. Force was visiting Israel on a tour organized by Vanderbilt University study group examining global entrepreneurship as part of his MBA studies.

The next month, in April 2016, PMW released a report entitled “The PA’s Billion Dollar Fraud” documenting that the PA was deceiving the donor countries by falsely claiming that it was the PLO that funded the terrorists and not the PA. This PMW report was also presented to members of Congress.
Subsequently, when Taylor’s family and friends learned that the family of his murderer, who was killed during the attack, was to receive a monthly allowance from the PA as a reward for their son’s act of terrorism, Taylor’s family initiated the Taylor Force Act (TFA).

Developing the Obama legislation, while also recognizing that money is fungible and that any ESF aid could be used by the PA to pay rewards to terrorists, the Taylor Force Act determines that “The Palestinian Authority’s practice of paying salaries to terrorists serving in Israeli prisons, as well as to the families of deceased terrorists, is an incentive to commit acts of terror” and called on the PA “to stop payments for acts of terrorism.”

The Taylor Force Act further provided additional, elementary provisions, consistent with the war on terror that conditioned all the ESF aid on the PA meeting four basic requirements:

1)    That the PA was “taking credible steps to end acts of violence against Israeli citizens and United States citizens”;

2)    That the PA had “terminated payments for acts of terrorism”;

3)     That the PA had “revoked any law, decree, regulation, or document authorizing or implementing a system of compensation for imprisoned individuals that uses the sentence or period of incarceration of an individual imprisoned for an act of terrorism to determine the level of compensation paid, or have taken comparable action that has the effect of invalidating any such law, decree, regulation, or document;

4)     That the PA was “publicly condemning such acts of violence and are taking steps to investigate or are cooperating in investigations of such acts to bring the perpetrators to justice.”

As exposed by Palestinian Media Watch, instead of heeding the call to abolish “Pay-for-Slay,” the PA’s 2018 budget openly defied the US, allocating 7.47% of the PA's operational budget for the ”Pay-for-Slay” rewards.

When TFA became law, on March 23, 2018, the PA and the PLO openly rejected its provisions:

"Official Spokesman of the  National Unity Government Yusuf Al-Mahmoud expressed the government's rejection and condemnations of Congress's conditioning the continuation of the American aid to the Palestinian state’s institutions on the Martyrs' (Shahids) and prisoners' allowances (mukhassasat) being stopped.... The official spokesman continued: 'In the eyes of our people, our nation, and our cause, the Martyrs and prisoners are sacred symbols of freedom, struggle, protecting human dignity, and resistance to submission and humiliation. All of these titles are noble titles, and an anchored right of all humans, which cannot be bought or sold for any fortune in the world.'"

[WAFA, official PA news agency, March 23, 2018]

While the US clearly has the prerogative to whom to give aid, under what stipulations and to condition its aid on the PA conforming to the global war on terrorism and abandoning its terror incentivizing policy, the Head of PLO General Commission in the US, Husam Zomlot, preferred to reject the demand declaring that the Palestinian leadership will not submit to financial “extortion.” [Official PA daily Al-Hayat Al-Jadida, March 25, 2018]

PA rejects US aid

While the Consolidated Appropriations Act, 2016 and TFA focused mainly on the ESF aid, when the Anti-terrorism Clarification Act (ATCA) passed in late 2018, it prompted then PA Prime Minister Rami Hamdallah to write to then US Secretary of State Mike Pompeo and request that the US cease all aid to the PA.

ATCA provided that any country or body that was in receipt of any US aid inherently agreed to the jurisdiction of the US courts to adjudicate claims filed against the recipients of the aid. The legislation was designed to ensure that US victims of terror would be able to claim damages in the US courts, for acts of terror committed against them abroad by recipients of US aid. While ATCA was not PA specific legislation, it had a devastating effect on the PA.

After a federal jury in Manhattan had found the PA/PLO responsible for multiple acts of terror in which US citizens were murdered and injured, in February 2015, they awarded the families $218.5 million, which was tripled automatically to $655.5 million under the Anti-Terrorism Act.

While the PA was willing to accept the billions of dollars of US aid, when it came to bearing responsibility for acts of terror, it argued that it did not have a sufficient presence in the US in order to justify the US courts claiming jurisdiction. When the claim was accepted by the US appeals courts, the PA/PLO was overjoyed, while the victims were left bereft of justice.

Since ATCA would no longer have allowed the PA to escape its responsibility for terror in the US courts, the PA was faced with a dilemma: Abandon terror and terror financing or relinquish US aid? The PA chose to relinquish the US aid.

ATCA was amended in December 2019 by the Promoting Security and Justice for Victims of Terrorism Act (PSJVTA). Instead of establishing the jurisdiction of the US courts through the “aid recipient” clause, PSJVTA established the court’s jurisdiction if the PA/PLO continued its “Pay-for-Slay” policy or if the PA/PLO maintained an office in the US from which it conducts activity on behalf of the PA/PLO.

When PSJVTA passed, the offices of the PA/PLO in Washington DC had already been closed. The offices were closed after then Secretary of State Mike Pompeo was unable to certify that all the different conditions for waiving the ban on the PA/PLO opening or maintaining office in the US had been met. Accordingly, PSJVTA only affected the PA/PLO if they continued with the “Pay-for-Slay” policy.          

PA/PLO presence in the US

Passed in 1987, the Anti-Terrorism Act designated the PLO and its affiliates as a terrorist organization. The designation also included the prohibition of the PLO from opening or maintaining an office in the US.

From 1993 through 2018, successive US administrations had waived the prohibition regarding the offices of the PLO, after the State Department concluded that functions of the offices “would advance U.S. efforts to promote peace between Israel and the Palestinians, and that barring the PLO from engaging in these activities would interfere with U.S. diplomacy.” [Legal opinion of the US State Department, “Statutory Restrictions on the PLO’s Washington Office”, Sept. 11, 2018]
In 2018, the State Department concluded that the “PLO had failed to use its Washington office to engage in direct and meaningful negotiations on achieving a comprehensive peace settlement and, therefore, closing the PLO’s Washington office would serve the foreign policy interests of the United States.” [Legal opinion of the US State Department, “Statutory Restrictions on the PLO’s Washington Office”, Sept. 11, 2018]

The PLO is an umbrella organization for a number of different Palestinian organizations. At least one of the PLO member organizations, the Popular Front for the Liberation of Palestine (PFLP), is a US and internationally designated terror organization. Most recently, it was the PFLP terrorists who planted a bomb near a popular spring and detonated it as 3 members of the Schnerb family passed by. 17-year-old Rina Schnerb was murdered in the attack and her father and brother were seriously injured.

The most dominant member of the PLO is Fatah. Fatah is headed by Mahmoud Abbas, who is also the head of the PLO and PA Chairman. While Fatah, per se, is not a US designated terror organization, its military wing, the Al-Aqsa Martyrs’ Brigades - responsible for the murder of hundreds of Israelis - is a US designated terror organization.

Every year, the PA transfers hundreds of millions of shekels to the PLO. The PLO, in turn, funds its member organizations, including the designated terror organizations. The PLO is also the organization through which the PA makes its “Pay-for-Slay” payments to imprisoned and released terrorists, wounded terrorists and the families of dead terrorist “Martyrs.”   

When Salameh, the advisor of PA PM Shtayyeh, complained that the Anti-Terrorism Act “has interfered and continues to interfere in the arrival of aid to Palestine,” what he meant was that the legislation prevents the PA from more openly using US aid to support US designated terror organizations and to pay financial rewards to terrorists, including those responsible for the murder of US citizens.  
Initiating or supporting an International Criminal Court investigation

In addition to the aid restrictions imposed pursuant to the PA’s “Pay-for-Slay” policy, separate legislation regarding PA activities in the United Nations and against Israel in the International Criminal Court (ICC) also limits ESF aid to the PA.

Passed in January 2014, under the administration of then President Obama, the Consolidated Appropriations Act, 2014 limited ESF aid if the Palestinians “obtain the same standing as member states or full membership as a state in the United Nations” or “initiate an International Criminal Court judicially authorized investigation, or actively support such an investigation, that subjects Israeli nationals to an investigation for alleged crimes against Palestinians.” The same provision has been adopted every year since, most recently as part of the Consolidated Appropriations Act, 2021, passed in December 2020.

While the Palestinians have not had their status upgraded in the UN, the PA activities in the ICC now invoke the full force of the limitation.

Despite the clear provision, in January 2015, the PA initiated the process to join the ICC and filed an official complaint over alleged crimes committed by Israel "in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014".  Pursuant to the initial complaint, the ICC Prosecutor, Fatou Bensouda, opened a preliminary examination.

In December 2019, Bensouda decided to open a full ICC investigation. The investigation was initially suspended by Bensouda, pending a decision of the ICC Pre-Trial Chamber I (PTC I) regarding the territorial jurisdiction of the ICC (including the territorial scope of the investigation).

In February 2021, PTC I decided, by majority, that the ICC’s territorial jurisdiction in the “Situation in Palestine” extends to the territories ostensibly occupied by Israel since 1967, namely “Gaza and the West Bank, including East Jerusalem”. [Majority decision of ICC PTC I regarding the “Situation in Palestine”, Feb 5, 2021]

On  March 3, 2021, Bensouda announced the official opening of the ICC investigation into the “Situation in Palestine.”

Responding to the decision, senior Palestinian official and Fatah Central Committee Secretary Jibril Rajoub made clear: ‎

‎“[The ICC’s decision to investigate ‎Israel] is the climax of the efforts that the Palestinian National Authority, ‎the [PA] Ministry of Foreign Affairs, the mechanisms of the state, and ‎the [PA] presidential institutions have invested over the years that have ‎passed, and now we are picking the fruits of this effort that has ‎meanings and messages.”‎

[Official PA TV, Topic of the Day, March 3, 2021]‎

Since December 2019, when Bensouda announced her decision to open an official investigation, PA officials have been bragging about the active Palestinian support for that investigation.

Soon after the decision to initiate the investigation, pending the decision of PTC I, then senior PLO official Saeb Erekat made clear:

“The step taken by the prosecutors represents a confirmation of her position that the ICC has territorial jurisdiction to examine the ongoing crimes that are committed by Israel, the Occupying Power. It is the final step towards opening a criminal investigation, and it is a message of hope to our people, the victims of those crimes, that justice is indeed possible.”

[Wafa, official PA News Agency (English) Dec. 20, 2019]

Two months later, Bensouda met with PA Prime Minister Muhammad Shtayyeh:

[Wafa, official PA News Agency, Feb. 15, 2020]

The PA continued to expose the extent of its connection to the investigation after the decision of the ICC PTC I and the announcement of Bensouda that she was officially launching the investigation. Responding on official PA TV to a question as to whether the PA was in contact with Bensouda, PA Minister of Foreign Affairs Riyad Al-Malki replied:

“Yes, we are in ‎constant contact with her… and her office from the first moment ‎when we set foot in the ICC in 2014… [We’re in touch] directly or ‎indirectly, through the visits we are making, through the contact via our ‎delegation at The Hague, or through the periodical reports we are ‎submitting to the general prosecutor’s office.”

[Official PA TV, Topic of the Day, March 6, 2021]‎

Upon return from a meeting with Bensouda, Al-Malki added:

“The contacts will continue with International Criminal Court (ICC) Chief Prosecutor Fatou Bensouda, despite all the obstacles being placed by the occupation authorities… In the meeting with Bensouda it was emphasized that the launch of the investigation [of Israel] must be expedited and the cases must be transferred in the transitional period of the new president (sic., apparently refers to the new ICC chief prosecutor who will replace Bensouda), and that there need to be practical steps on the ground to advance them instead of reexamining the cases with the ICC’s new team.’”

[Official PA daily Al-Hayat Al-Jadida, March 23, 2021]

There is no doubt that the PA/PLO initiated the now judicially authorized ICC investigation. Furthermore, PA/PLO officials have continuously exposed the active Palestinian support for that ICC investigation. Accordingly, it is clear that the conditions of the 2014 Consolidated Appropriations Act (and all the subsequent legislation that adopted the original clause) have been met and the PA is prohibited from receiving ESF aid.

A PA government with Hamas participation

The last PA general elections, held in 2006, were won by the US and internationally designated terror organization Hamas. Soon after, and in response to the creation of a Hamas-dominated PA government, the US adopted the Palestinian Anti-Terrorism Act of 2006.

To avoid US aid from pouring into the hands of a designated terror organization, the act limited all the different forms of US aid until such time as Hamas met a list of terms.

The subject became moot, when PA Chairman Mahmoud Abbas deposed the Hamas government and replaced it with a government of his choice. As no new PA elections have been held since 2006, Abbas-appointed governments have continued to run the PA ever since.

In January 2021, Abbas announced that PA general elections would be held in May 2021. Fearing a repeated Hamas win, which would have invoked the provisions of the act again, Abbas cancelled the elections.       

It should be noted that with the exception of the Taylor Force Act, all the other US legislation include a presidential waiver, permitting the president to circumvent the intention of the legislation, under certain circumstances.

US aid to UNRWA

While refugees the world over come under the auspices of the United Nations High Commissioner for Refugees (UNHCR), the Arab Palestinian refugees have their own UN organization dedicated solely to them - UNRWA.

The US aid to UNRWA is not subject to the limitations of the general aid to the PA. As noted above, from 1950 to 2018, the US aid to UNRWA amounted to $6,248.4 billion. During that period, despite the extensive aid, UNRWA failed to settle any of the refugees. In fact, the number of refugees rose by almost 800%, from 711,000 in 1948/9 to 5,340,443 as of Jan. 1, 2017.

Of the $4,499.7 billion donated by the US to UNRWA since 1994, $2,431 billion (or 54%) was donated by the administrations of then President Barack Obama. In that period, US aid to UNRWA almost doubled from $184.7, in 2009, to $359.5 million 2016.

Despite the huge increase in US aid during this period (2009 – 2016), the number of UNRWA registered refugees actually grew by 668,632 people. According to figures published by UNRWA, on Dec. 31, 2008 the number of UNRWA registered refugees was 4,671,811. By Jan. 1, 2017, this number had grown by more than 14%, to 5,340,443 people.    

The continuous growth in the number of Palestinian refugees is due to the “refugee” definition that is unique to UNRWA, that allows for the “descendants of Palestine refugee males, including adopted children” to be registered as refugees, ad infinitum.

A UN report, compiled in 1949, recorded that 50% of the original 711,000 refugees were 16 years old and above. Accordingly, of the original refugees 50% would be at least 89 years old while the remaining 50% would today be between 73 and 88 years old. UNRWA does not provide statistics regarding the age of the registered refugees.  

According to UNRWA figures as of December 31, 2019, there were 5,629,829 registered Palestinian refugees. Statistics for 2020 have not been published.

As PMW has demonstrated, the PA uses the subject of the Palestinian refugees as a means to forward its goal to destroy Israel. According to the PA, Israel – Palestinian peace can only be achieved once Israel submits to the Palestinian demand to allow all the Palestinian refugees to flood Israel.

History has proven that US aid to UNRWA has not helped provide or even lay the foundations for resolving the situation. In the absence of serious reevaluation of the goals and modus operandi of UNRWA, it is unclear what goal the renewed US aid will serve.

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