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PA is “actively supporting” an ICC investigation against Israel

Maurice Hirsch, Adv.  |
  • Senior PA officials openly disclose that the PA is actively supporting an ICC investigation against Israel.

  • US legislation prevents providing aid to the PA if it actively supports the ICC investigation against Israel.

  • So long as the PA actively supports the ICC investigation, the President may not invoke his waiver and may not allow the reopening of the PLO offices in the US.

While the subject of the International Criminal Court (ICC) investigation against Israel has not been a focus of recent attention, no mistake should be made - the Palestinian Authority, which initiated the proceedings, is still doing its utmost to actively support, promote and forward the investigation. The PA’s continued efforts in the ICC activate provisions in US legislation which prohibits the administration from providing the bulk of its aid to the PA and prevent reopening the PLO offices in the US.

Discussing the relations with the ICC prosecutor, PA Minister of Foreign Affairs and Expatriates Riyad Al-Malki explained how the PA meetings with the prosecutor are ongoing. Al-Malki continued saying that the prosecutor even made several requests of the PA and that the PA decided to cooperate with the prosecutor “so that the investigation will begin.” Al-Malki added that having been told that the prosecutor was assessing his priorities, the PA hopes to meet with him to understand the result of all the preparations:  

“Yes, we are in contact, but unfortunately it has not actually begun for several reasons. As you know, the previous prosecutor [Fatou Bensouda] left and a new chief prosecutor arrived. After we met with him a number of times he said that he first of all needs to take his place and determine the priorities, to look at the cases before him and determine the priorities of the cases, and to see what his capabilities are in terms of economic capabilities and manpower, in order to determine which resources to allocate to each case so he will begin its investigation. Until now he is busy with this. He sent us a letter directly and said that he expects us to help him so that his representatives will be able to come to Palestine and begin the work. He made several requests of us that we need to help him with, and we agreed and said that we are prepared to cooperate with all these requests so that the investigation will begin. We hope that soon we will meet with him at the ICC headquarters so that we will sit with him and understand what the result is of all these preparations, and whether the Israel-Palestine case is one of the priorities that he determined at this stage and which resources he has dedicated to this case, so that we will be able to see what can be expected and when and how and at what point.”

[Official PA TV, Topic of the Day, March 5, 2022]

Al-Malki’s update followed his prior demand that the new ICC prosecutor to give priority to the cases submitted by the “State of Palestine” and to expedite the opening of the investigations:

Official PA TV newsreader: “The Palestinian [PA] Ministry of Foreign Affairs demanded that International Criminal Court (ICC) General Prosecutor Karim Khan give priority to cases that were submitted by the State of Palestine, after a decision was made to launch an investigation of them and to expedite the launching of the investigation of the occupation’s crimes against Jerusalem, and especially the forced expulsion of citizens from the neighborhood of Sheikh Jarrah and the town of Silwan (refers to evictions of illegal Arab squatters from Jewish owned properties in Jerusalem neighborhoods; see note below -Ed.).”

[Official PA TV News, June 27, 2021]

The Head of the UN Department of the PA Ministry of Foreign Affairs and Expatriates Omar Al-Awadallah, also noted that the PA discussions with the ICC Prosecutor continue and that the PA continues to send materials to the ICC:

“The discussion with the International Criminal Court (ICC) continues. Every crime that is committed in the occupied lands is characterized according to the rules of international law, and we let all the relevant international bodies know about this, from the special investigators of the [UN] Human Rights Council, on to UN Secretary-General [António Guterres], [UN] General Assembly President [Abdulla Shahid], and the president of the [UN] Security Council, and up until the international courts including the ICC.”

[Official PA TV, Topic of the Day, Feb. 28, 2022]

The PA’s latest efforts to promote the ICC investigation are nothing new. As Palestinian Media Watch has already exposed, in May 2021 the Head of the PA Attorney’s Office for International Legal Cooperation Jamil Sajadiyeh, described the PA-ICC relations at length:

Approximately 80 meetings have been held between Palestine and the ICC, of course with the office of [ICC] General Prosecutor [Fatou Bensouda]. There are nearly 60 cases and letters that have been submitted, all of them telling about the Israeli violations. There are monthly reports that are being submitted to the ICC through the general prosecutor and through the [PA] Ministry of Foreign Affairs… Palestine has submitted [to the ICC] all it can in order to carry out these investigations. We are [working] according to the instructions of His Honor [PA] President [Mahmoud Abbas] and all the relevant parties regarding the pursuit of this criminal that is committing despicable crimes every day… Allah willing, we hope that very soon Palestine will be asked to provide the ICC with all that has been documented, and of course we are also prepared to provide the ICC with anything that it will ask to document or clarify in the future.”

[Official PA TV, Palestine This Morning, May 25, 2021]

Implications pursuant to US law

The PA promotion of the ICC investigation has two major implications, vis-à-vis US law, one that effects aid and one that impacts on the reopening of the PLO offices in the US.  


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. 

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, 2022, which became law on March 15, 2022.

Opening the PLO offices in the US

Section 1003 of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 provides, inter alia, that the Palestine Liberation Organization (PLO) may not “maintain an office, headquarters, premises, or other facilities or establishments within the jurisdiction of the United States at the behest or direction of, or with funds provided by the Palestine Liberation Organization or any of its constituent groups, any successor to any of those, or any agents thereof” in the US.

While PLO offices were opened in the US, they were closed under the Trump administration.

The Consolidated Appropriations Act, 2022 also provides, that in certain circumstances the President can waive that prohibition. To do so, however, the President needs to show that the Palestinians have not “obtained in the United Nations or any specialized agency thereof the same standing as member states or full membership as a state outside an agreement negotiated between Israel and the Palestinians; and (II) initiated or actively supported an ICC investigation against Israeli nationals for alleged crimes against Palestinians.”

While the Palestinians have not had their status upgraded in the UN, since the PA is, by its own admission, clearly “actively supporting” an ICC against Israel, the US is prohibited from providing ESF aid to the Palestinians and the President may not invoke any waiver to allow the opening of a PLO office.

The PA is critical of the Biden administration for not renewing funding to the PA and for not allowing the PLO to reopen its offices in the US. However, in reality, it is the PA’s own actions that are the obstacle.

Neither of the above provisions are new. While these provisions existed, and while the PA positively knew and understood the repercussions of its decisions, the PA nonetheless decided to join the ICC and to actively support an investigation against Israel. As in many cases regarding the PA complaints, the PA has no one to blame but themselves.

Brief history of the proceedings in the ICC against Israel:

In complete violation of the Oslo Peace Accords - a generic name used to describe a series of agreements between Israel and the Palestine Liberation Organization between September 1993 and September 1995 - on January 1, 2015, the Palestinian Authority, calling itself “The Government of the State of Palestine” lodged a declaration under article 12(3) of the Rome Statute accepting the jurisdiction of the ICC over alleged crimes committed "in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014"

Membership in the ICC is limited to “states”. No independent “State of Palestine” has ever existed. The ICC and related mechanisms nonetheless allowed “Palestine” to join the court.

The date chosen by the PA was not coincidental. On June 12, 2014, Palestinian terrorists kidnapped three Israeli teens, sparking a substantial military operation in Judea and Samaria. Seeking to argue that the Israeli military operation was simply arbitrary, the PA chose to curtail the jurisdiction of the court by requesting that its jurisdiction start on June 13, thereby removing any context for the Israeli operation.

On May 15, 2018, Al-Malki, in the name of the PA, “referred to the [ICC] Prosecutor” the “situation in Palestine”. In the referral, Al-Malki baselessly accused Israel of committing a host of different crimes.

The date of the PA referral was also not coincidental.

On December 6, 2017, Ex-US President Donald Trump, announced his intention to fulfil the requirements of the 1995 Jerusalem Embassy Act and move the US embassy to Jerusalem. The opening ceremony of the new US embassy in Jerusalem was held on May 14, 2018, the day proceeding the PA referral.

Since no “State of Palestine” has ever existed, and since the non-existent “State” never had any borders, in January 2020, the ICC prosecutor petitioned the court to define the “geographical jurisdiction” of the court regarding the “State of Palestine”. In the petition, the prosecutor asked that the court ignore the specific provisions of the 1949 armistice agreements between Israel and Egypt – that had occupied the Gaza Strip – and between Israel and Jordan – that had occupied Judea and Samaria – and the Oslo accords, and recognize the 1949 armistice lines as the borders of the “State of Palestine.” 

Objecting to the petition, PMW joined with partners and submitted a detailed brief explaining why the court should reject the both factually and legally flawed petition of the Prosecutor.

While considering the request of the ICC Prosecutor, PMW exposed the illicit collusion between the prosecutor and the PA and that the PA had intentionally submitted a falsified document to the court. PMW also exposed that even statements made by PA’s own Minister of Justice, nullified the asserted jurisdiction of the court.

In February 2021, not unsurprisingly, two of the three judges of the ICC’s Pre-Trial Chamber I, accepted the Prosecutors arguments, invented the “State of Palestine” and set its borders as the 1949 Armistice lines. The decision of the court was followed soon after, in March 2021, with a decision of the prosecutor to open a formal investigation against Israel. At the time Malki boasted, that the prosecutor informed the PA of her decision but asked that the PA keep it secret.

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