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PA expects President Biden to ignore US law

Maurice Hirsch, Adv.  |

Two of the fundamental demands of the Palestinian leadership is that President Biden renew US funding to the Palestinian Authority and re-open the offices of the Palestine Liberation Organization (PLO) in Washington. The problem is that the PA is knowingly and openly flouting at least 2 fundamental provisions of US law that prohibit providing the bulk of US funding to the PA and also prohibit re-opening the PLO offices. By making these demands, the PA is implicitly demanding that President Biden either ignore US law or actively pursue a change to widely accepted bi-partisan legislation. 

In a recent interview, PA Minister of Foreign Affairs Riyad Al-Malki expanded on the ongoing discussions between the PA and the ICC prosecutor, and the latest PA move to include the killing of Al-Jazeera journalist Shireen Abu Akleh in the investigation. Al-Malki added that the PA also wrote to the ICC Prosecutor, urging him to add the “crime of Apartheid” to the subjects the prosecutor needs to investigate: 

Official PA TV reporter: “[PA Minister of Foreign Affairs Riyad] Al-Malki and his accompanying delegation discussed ways of developing the activity and cooperation with the [International Criminal] Court (ICC), and all the complaint cases against Israel. The ICC also received the evidence, proof, and report of Palestinian [PA] General Prosecutor [Akram Al-Khatib] on the case of the assassination of Palestinian Martyr journalist Shireen Abu Akleh and the occupation’s crimes against our [Palestinian] people with all its layers.” 

PA Minister of Foreign Affairs Riyad Al-Malki: “We submitted a copy to him of the results of the investigation carried out by the Palestinian general prosecutor regarding the assassination of journalist Shireen Abu Akleh, and the results of the investigation. He officially asked us to provide him with details about this investigation so that he would be able to follow this issue with the necessary seriousness. We gave him a letter discussing the need to add the crime of apartheid as part of the [Israeli] crimes that the ICC needs to investigate.” 

[Official PA TV News, June 9, 2022] 

Al-Malki’s discussion with the ICC prosecutor followed the statement of PA Chairman Mahmoud Abbas in which he rejected Israel’s call to conduct a joint investigation into the killing of Abu Akleh, saying the PA would “immediately go to” the ICC: 

 “[PA] President Mahmoud Abbas held the occupation authorities fully responsible for the crime of killing journalist Shireen Abu Akleh.  In a short speech during the funeral ceremony of Martyr Abu Akleh at the [PA] presidential headquarters in Ramallah yesterday, Thursday [May 12, 2022], the president [Abbas] said: ‘We have refused and will refuse a joint investigation with the Israeli authorities, because they committed the crime and we do not believe them and will immediately go to the International Criminal Court (ICC) to prosecute the criminals.’” 

[Official PA daily Al-Hayat Al-Jadida, May 13, 2022] 

US funding to the PA 

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

Passed in January 2014, under the administration of then President Obama, the Consolidated Appropriations Act, 2014 blocked ESF aid to the PA if the Palestinians “initiate an International Criminal Court (ICC) 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 

Section 1003 of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 provides, inter alia, that the 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.”  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.” 

Palestinian moves to open an ICC investigation 

In 2018, the PA petitioned the ICC to open an investigation against Israel. In March 2021, the ICC prosecutor opened a “judicially authorized investigation”. 

Despite these clear provisions, as Palestinian Media Watch has extensively documented, the PA has both initiated and is actively supporting an ICC investigation against Israel.  

For that purpose, PA officials secretly colluded with the ICC Prosecutor, conducting over 80 meetings. The relationship between the ICC prosecution and the PA was so close, that the Prosecutor even secretly updated the PA of the intention to open an official investigation, merely asking that PA “keep secret” the decision. In fact, the PA felt so confident about its relations with the ICC that it even allowed itself to submit falsified documents to the court

Paying terror rewards 

In addition to the provisions of the Consolidated Appropriations Act, the ESF aid to the PA is also blocked by the Taylor Force Act (TFA), which conditions the aid on the abolition of the PA’s payments to terrorist prisoners, released prisoners, wounded terrorists, and the families of dead terrorists. 

As PMW has clearly shown, the PA has consistently refused to meet the requirements of TFA, repeatedly declaring that the terror reward payments are its first priority.  

As President Biden prepares to meet with Abbas, he would do well to clearly and unambiguously clarify that the reason the PA is not receiving US aid is because the PA is knowingly and intentionally flouting US legislation.