WASHINGTON — In initiating a war crimes probe against Israel with the International Criminal Court, Palestinian Authority President Mahmoud Abbas may fall afoul of US legislation that would mandate defunding the PA. The US funds the PA to the tune of some $400 million per year.
An unidentified Palestinian source claimed that Abbas signed a request Thursday asking the ICC to investigate war crimes allegedly “committed in Palestine” since the summer. This action may tip the scales in Washington, where there is already bipartisan frustration with Abbas’s decision to put a Palestinian statehood resolution before the United Nations Security Council on Tuesday, and, after the resolution was defeated, to sign on to the ICC on Wednesday.
Even if Abbas’s ICC investigation gambit does not play out — and Palestine’s route ahead at the ICC is strewn with legal obstacles — it is viewed by many leaders of the incoming Republican-controlled Congress as the latest justification to reexamine the PA’s American funding.
Aaron David Miller, a former presidential advisor and a distinguished scholar at the Woodrow Wilson International Center for Scholars, believes that PA funding will be increasingly at risk in the Republican-controlled Congress that will be sworn in later this month.
“I think the odds of defunding are higher than they ever were before,” he told The Times of Israel. “A whole new reality has now been created and I suspect that they are going to close any loopholes that may exist regarding the funding. The world in Washington is about to change.”
Members of Congress on both sides of the aisle have had staffers looking into whether there is any legal basis for penalizing the United Nations and its affiliated institutions, as well as the Palestinian Authority itself, for either the ICC move or the failed UN Security Council resolution. Those checks seemed to come up largely empty-handed, but a PA move to initiate war crimes investigations against Israel may catalyze further efforts.
The stop-gap funding bill passed by Congress and signed by President Barack Obama last month contains language that stipulates that no State Department economic support funding may be given to the PA if “the Palestinians 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.”
A crucial grey area in the application of the clause surrounds the interpretation of the word “initiate.” Congressional legal counsels are currently examining whether “initiate” means that the Palestinian request itself triggers the sanctions, or if they are triggered only if and when the ICC decides to take up the case.
At least one congressional office – that of Rep. Ileana Ros-Lehtinen (R-FL) – understands the text to refer to the initial submission by the PA.
Ros-Lehtinen responded to Abbas’s ICC membership bid by calling on the Obama administration “to show Abu Mazen (Abbas) and the PA that there will be consequences for their irresponsible behavior and continued efforts to undermine the peace process.”
“Congress must do everything in its power to block funds to the PA and to any UN entity that recognizes a non-existent State of Palestine to make it clear to Abu Mazen that there will be consequences to his schemes at the United Nations and other international organizations like the International Criminal Court,” she declared.
The ICC clause, Aaron David Miller suggested, ‘is going to present a significant funding problem and the administration will probably not have any alternative but to comply’
Even if Palestine is admitted to the ICC in the coming weeks, complaints filed by a Palestinian Authority with member status may still undergo a complex process before any investigation can be launched. For instance, the complaint could only be investigated regarding war crimes committed within the territory of member-state Palestine, and there is no international agreement regarding what areas are included in that territory.
Unlike other defunding provisions included in the funding bill, the ICC clause does not include a waiver by which the defunding can be avoided due to American national security interests (the waiver system requires that the president certify that it is important to the national security interests of the United States to waive the provisions restricting PA funding).
Since the formation of the Fatah-and Hamas-backed Palestinian national unity government in the spring of 2014, calls in Congress to defund the Palestinian Authority have become increasingly common.
The ICC clause, Miller suggested, “is going to present a significant funding problem and the administration will probably not have any alternative but to comply.”
“This is one of the many million headaches that this move is going to produce,” Miller added.
In recent months even before the November congressional elections, Republican and Democrat members of Congress called repeatedly for a reexamination – or even freeze – of funding to the Palestinian Authority. In September, Rep. Ted Yoho (R-FL) submitted a bill together with ten Republican co-sponsors to cut all US funding to the PA until “the PA has stopped providing funds or rewards to terrorist organizations; and working with terrorist organizations, including Hamas.”
Following the Security Council vote on Tuesday, Senator Ted Cruz (R-TX) posted a lengthy message on his Facebook page in which he said that “we should make clear that continuing these efforts will result in the immediate freeze in American financial support to the PA.”
The US has little recourse with the ICC itself, as it is not a signatory.
Washington is, however, a key funder for the Palestinian Authority and budgetary legislation traditionally places a series of conditions on the continuation of funding.
The “continuing resolution” passed in December by Congress in lieu of a budget repeats prior year language that no economic assistance may be provided to the Palestinian Authority if the Palestinians obtain the same standing as member states or full membership as a state in the United Nations or any specialized agency.
If the Palestinians obtain member state status at the UN or any specialized agency, the legislation stipulates that the PLO office in Washington will be closed for at least three months. The office can be re-opened any time after those three months, provided the Palestinians engage in direct and meaningful negotiations with Israel.
The ICC is not a UN specialized agency and the ICC-related language is contained in a separate clause.
The State Department did not respond to inquiries as to whether it believes that Abbas’s reported move would trigger defunding.
Already unhappy with Abbas for his pursuit of a Security Council resolution, Jeff Rathke, director of the department’s Office of Press Relations, spared few words Wednesday in condemning Abbas’s initial application to the ICC. Rathke described the move as “an escalatory step that will not achieve any of the outcomes most Palestinians have long hoped to see for their people” and as a “counterproductive” action that “does nothing to further the aspirations of the Palestinian people for a sovereign and independent state.”
According to Rathke, the State Department believes that the ICC move “badly damages the atmosphere with the very people with whom they ultimately need to make peace.” Still, despite months of admonitions that the US would oppose any Palestinian move to join the ICC, Rathke’s statement stopped short of delineating steps the administration would take to penalize the Palestinian Authority for its action or even implying that any such steps might be taken.