Over the weekend new broke that the Trump Administration was closing the PLO mission in Washington, DC. To help people understand the laws that led up to this crisis, FMEP has compiled the relevant laws, below.
1. The 1987 Law that Started it All
In 1987, Congress passed legislation barring the PLO from operating in the United States (Sec. 1003 of PL 100-204; aka 22 USC 5202: Prohibitions regarding PLO). That section states:
It shall be unlawful, if the purpose be to further the interests of the Palestine Liberation Organization or any of its constituent groups, any successor to any of those, or any agents thereof, on or after the effective date of this chapter-
(1) to receive anything of value except informational material from the PLO or any of its constituent groups, any successor thereto, or any agents thereof;
(2) to expend funds from the PLO or any of its constituent groups, any successor thereto, or any agents thereof; or
(3) notwithstanding any provision of law to the contrary, to establish or 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.
When President Ronald Reagan signed PL 100-204 into law on Dec. 27, 1987, he issued a signing statement declaring Sec. 1003 unconstitutional. He wrote:
Section 1003 of the Act prohibits the establishment anywhere within the jurisdiction of the United States of an office “to further the interests of” the Palestine Liberation Organization. The effect of this provision is to prohibit diplomatic contact with the PLO. I have no intention of establishing diplomatic relations with the PLO. However, the right to decide the kind of foreign relations, if any, the United States will maintain is encompassed by the President’s authority under the Constitution, including the express grant of authority in Article II, Section 3, to receive ambassadors. I am signing the Act, therefore, only because I have no intention of establishing diplomatic relations with the PLO, as a consequence of which no actual constitutional conflict is created by this provision.
2. The Middle East Peace Facilitation Act (1993-1997)
After the signing of the Olso Accords, Congress chose not to repeal 1003 of PL 100-204 (or any other anti-PLO legislation). It instead passed legislation giving the president authority to temporarily suspend key anti-PLO laws. That legislation was called the Middle East Peace Facilitation Act, PL 103-125, signed into law Oct. 28, 1993. This law permitted the establishment of the PLO mission in Washington in 1994.
Congress let MEFPA expire in 1997.
3. The Era of the National Security Waiver (1997-2011)
In 1997, Congress replaced the broad suspension authority granted to the president in MEPFA with a waiver provision – specific to 1003 of PL 100-204 – quietly inserted into the FY98 Foreign Operations Appropriations Act (Sec. 539d of PL 105–118, signed into law on Nov. 26, 1997). This provision read:
(1) The President may waive the provisions of section 1003 of Public Law 100–204 if the President determines and certifies in writing to the Speaker of the House of Representatives and the President pro tempore of the Senate that it is important to the national security interests of the United States.
(2) PERIOD OF APPLICATION OF WAIVER.—Any waiver pursuant to paragraph (1) shall be effective for no more than a period of six months at a time and shall not apply beyond twelve months after enactment of this Act.
Congress included a similar waiver in annual Foreign Operations legislation every year from 1997-2011.
4. Conditioning the Waiver on Palestinian Actions at the UN
In 2011, the Palestinians were admitted as members in UNESCO. In response, in the FY12 Foreign Operations Appropriations Act (PL 112–74, signed into law on Dec. 23, 2011), Congress deleted the national security waiver of the 1987 law, and replaced it with a waiver conditioned on the president certifying that the Palestinians not being admitted to any additional UN agencies. According to the provision, if the president cannot make the certification, he must wait at least 90 days (during which it would be illegal for the mission to remain open), and then he can waive the 1987 ban if, and only if, he can certify that the Palestinians have entered into “direct and meaningful negotiation with Israel.”
The provision – Sec. 7086(b) of that bill – reads in full:
(1) The President may waive the provisions of section 1003 of Public Law 100–204 if the President determines and certifies in writing to the Speaker of the House of Representatives, the President pro tempore of the Senate, and the Committees on Appropriations that the Palestinians have not, after the date of enactment of this Act, 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.
(2) Not less than 90 days after the President is unable to make the certification pursuant to subsection (b)(1), the President may waive section 1003 of Public Law 100–204 if the President determines and certifies in writing to the Speaker of the House of Representatives, the President pro tempore of the Senate, and the Committees on Appropriations that the Palestinians have entered into direct and meaningful negotiation with Israel: Provided, That any waiver of the provisions of section 1003 of Public Law 100–204 under paragraph (1) of this subsection or under previous provisions of law must expire before the waiver under the preceding sentence may be exercised.
(3) Any waiver pursuant to this subsection shall be effective for no more than a period of 6 months at a time and shall not apply beyond 12 months after the enactment of this Act.
At the time it was being considered and passed, this new provision was highlighted as ” ********IMPORTANT************” and explained in detail, repeatedly, in my weekly Legislative Round-Up, including in the editions published July 29, 2011 and October 4, 2011.
5. Conditioning the Waiver on Palestinian Actions at the UN + on Palestinian Actions at the ICC
In 2015, the Palestinians joined the International Criminal Court (ICC), sparking consternation and concern in Israel and among supporters of Israel in Congress. In response, in the FY16 Consolidated Appropriations Bill (PL 114–113, signed into law Dec. 18, 2015) [which included the FY16 Foreign Operations Appropriations Act], Congress imposed an additional condition that the president must satisfy in order to waive the 1987 law, requiring that he certify that the Palestinians are not promoting, supporting, or endorsing action against Israel at the ICC. Like the previous UN-only version of the waiver language, according to the provision, if the president cannot make either certification (regarding the UN or the ICC), he must wait at least 90 days (during which it would be illegal for the mission to remain open), and then he can waive the 1987 ban if, and only if, he can certify that the Palestinians have entered into “direct and meaningful negotiation with Israel.”
The relevant provision, Sec. 7041(j)(2)(B), reads in full:
(i) The President may waive the provisions of section 1003 of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (Public Law 100–204) if the President determines and certifies in writing to the Speaker of the House of Representatives, the President pro tempore of the Senate, and the appropriate congressional committees that the Palestinians have not, after the date of enactment of this Act—
(I) 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) taken any action with respect to the ICC that is intended to influence a determination by the ICC to initiate a judicially authorized investigation, or to actively support such an investigation, that subjects Israeli nationals to an investigation for alleged crimes against Palestinians.
(ii) Not less than 90 days after the President is unable to make the certification pursuant to clause (i) of this subparagraph, the President may waive section 1003 of Public Law 100–204 if the President determines and certifies in writing to the Speaker of the House of Representatives, the President pro tempore of the Senate, and the Committees on Appropriations that the Palestinians have entered into direct and meaningful negotiations with Israel: Provided, That any waiver of the provisions of section 1003 of Public Law 100–204 under clause (i) of this subparagraph or under previous provisions of law must expire before the waiver under the preceding sentence may be exercised.
(iii) Any waiver pursuant to this subparagraph shall be effective for no more than a period of 6 months at a time and shall not apply beyond 12 months after the enactment of this Act.
At the time it was being considered and passed, this new provision was highlighted as ” ********IMPORTANT************” and explained in detail, repeatedly, in my weekly Legislative Round-Up, including in the editions published June 5, 2015, July 17, 2015, Dec. 23, 2015, and Dec, 31, 2015.
On Saturday, local and international media outlets reported that Palestinian President Mahmoud Abbas had formally announced his resignation from another organization he heads: the Palestine Liberation Organization (PLO). Specifically the reports said Abbas had quit his role as chairman of the Executive Committee, the highest decision-making body in the PLO.
Palestinians living in the West Bank over the past decade have witnessed two constants: ubiquitous, ever-expanding Israeli settlements straddling the hilltops, and persistent rumors of Abbas’s resignation as the Palestinian Authority (PA) president.
Therefore, as with any report coming out of the Muqat’a (the presidential headquarters), one must read the fine print when examining reports of Abbas’ resignation. Did he, and ten committee members, many of them representing PLO factions other than his own Fatah party, actually quit? Like most matters of Palestinian politics, the answer is largely composed of both speculation and fact.
The PA’s official WAFA news agency made no reference to the resignations, and Sa’eb Erekat, a long-time Abbas loyalist and chief peace negotiator who was recently elected PLO Secretary General, denied they took place. Ma’an, the main Palestinian news service affiliated with the ruling Fatah party, said the resignations were not valid until the Palestinian National Council, the Palestinian parliament in exile, holds a meeting.
Essentially, this means that Abbas and the other ten Executive Committee members submitted their resignations, but only the PNC can decide whether to accept or reject them. This move paves the way for the convening – possibly as early as September – of an extraordinary meeting of the PNC, where new Executive Committee elections can be held. Convoluted details aside, Abbas and the rest of the members continue to function in their original official capacities until those new elections.
This maneuver is widely seen as an attempt to consolidate power by Abbas. Confronted by political foes both within his own party and outside, the aging president has decided to take matters into his own hands in the face of widespread domestic criticism and an ongoing political stalemate, both in the peace process with Israel and the reunification process with Hamas. Analysts and observers in Palestine generally see this decision as political jockeying designed to boost Abbas’ control of the PLO’s Executive Committee, under the guise of infusing the decrepit institution with new blood.
Hani al-Masri, a Ramallah-based political analyst, said this can only be interpreted as an attempt to recalibrate the Executive Committee to Abbas’ favor. The Palestinian president is certain to be reinstated in a month, only to re-emerge stronger after having shed some of his rivals of their seats.
“These are not real resignations,” al-Masri explained. “They just want to use the resignations to call for an extraordinary meeting of the Palestinian National Council in accordance with Article 14 of the Palestinian Basic Law.”
Abbas is hoping that by submitting these resignations to the PNC, new Executive Committee elections will be held, wherein he can effectively get rid of the likes of Yasser Abed Rabbo, a longtime ally turned foe, and other members who have been less than supportive of Abbas.
In the past Abbas has singled out three men (two of whom are not part of the PLO): Abed Rabbo, former Gaza strongman Mohammad Dahlan, and former premier Salam Fayyad, all of whom have been mentioned as possible successors to Abbas. Abed Rabbo, a close associate of the late Palestinian leader Yasser Arafat, was a former cabinet minister who was heavily involved in peace talks with Israel. Mohammad Dahlan, once a close ally of Abbas’, headed the security forces in Gaza until Hamas took control of the strip in 2007. Fayyad, an internationally renowned economist, who worked at the World Bank and IMF, previously held positions as finance and prime minister for the PA.
On December 4, a Palestinian journalist with close ties to Abbas claimed that these senior Palestinian figures secretly met with U.S. Secretary of State John Kerry in the United Arab Emirates. This alleged meeting, which the men denied had taken place, was perceived as an attempt to chip away at Abbas’ power, with some even going as far as interpreting it as part of a coup.
In 2011, Dahlan was expelled from Fatah and more recently, Abbas ordered a probe and froze the assets of Future for Palestine, a foundation established by Fayyad. The former prime minister, who had retreated from the political limelight since resigning in 2013, founded the non-profit organization, funded by Gulf and European governments, to help marginalized communities in the West Bank and Gaza.
Abbas’ has recently moved to strip Abed Rabbo of his authority. On July 4, Abbas replaced him with Saeb Erekat, making Erekat the PLO’s second-in-command. On August 18, Abbas also ordered the closure of the Palestinian Peace Coalition, an NGO co-founded by Abed Rabbo and funded by the Swiss government to support a two-state solution.
Abbas has come under renewed pressure of late, and likely feels cornered by a slew of opposing forces: he is constrained by the international community, which supports his government, while also facing a rising tide of anger in the streets by those unsatisfied with a lack of political strategy and vision. Further, the 80-year-old president has yet to reveal a successor, prompting a scramble amongst his inner circle in anticipation of his eventual exit.
Abbas needs Salim al-Zanoun, the head of the PNC, to call for a new session. Technically, the positions vacated by these supposed resignations are the only ones that can be replaced. But Zanoun can use the resignations as a pretext to call for a dissolution of the entire Executive Committee, thereby giving Abbas the chance to rid it of his foes.
The PNC is expected to hold a meeting next month, a decision that does not guarantee members outside of the West Bank enough time to secure the necessary Israeli permits to enter the Territories. And holding the session in Ramallah also excludes those based in Gaza, thereby ensuring that only West Bank members, who are more likely to vote in favor of Abbas’ choices, can attend.
Throughout almost two decades, both Palestinian Territories have slowly become geographically and politically severed from one another as both parties ruling each territory blamed the other for this schism. There have been attempts to reconcile the two, but on the ground, Fatah and Hamas have been paying lip service to a reconciliation process for the last two years, and these developments could further the rift between them.
A day after the resignations took place, Hamas slammed the move as “invalid” because it did not address the issue of reconciliation and excluded Islamic Jihad and Hamas, both of which are not part of the PLO. “The collective resignations came to pave the way ahead of electing a new executive empty of all rivals,” said senior Hamas official Mousa Abu Marzouk. “This act is well-planned by Abbas,” Abu-Marzouk said. “Abbas likes to be alone and without rivals.”
When a federal court jury in New York reached a verdict last week on a lawsuit brought by American victims of terror attacks during the Second Intifada, holding that the Palestinian Authority could be held responsible, reactions were as quick as they were predictable.
The case involved ten families whose family members had been killed or severely injured by terrorist attacks during the Second Intifada. The Palestinian Authority was accused of indirect responsibility for these attacks. The decisive issue for the jury in the case seems to have been the fact that the PA continues to pay salaries to the families of the jailed terrorists who carried them out.
There is little doubt that the trial raises troubling issues. The first is the use of violence against civilians, which we unequivocally condemn. Another is how to address the very real suffering of the victims of terrorism and armed conflict, whether they be American, Israeli or Palestinian. But we must also consider how to do this in a practical manner that resists the use of victims’ suffering for political gains and contributes, rather than detracts from the prospects of resolving the conflict. In this regard, the verdict must be seen as a step in the wrong direction.
Benjamin Netanyahu added the verdict to his ongoing campaign to demonize Mahmoud Abbas and the Palestinian Authority. Supporters of a two-state solution fretted over the impact such a massive financial blow could have to the already feeble Palestinian economy. Palestinian solidarity activists saw one more example of how the American deck is stacked against the Palestinians.
The Palestinian Authority (PA) and the Palestine Liberation Organization (PLO) are sure to appeal this verdict, so it will likely be years before it is finally resolved. That, however, should not stop us from considering the difficult questions this case raises.
The most emotional of these questions regards the real human cost of ongoing conflict and how we, as a society both within the United States and in the larger global community address this. Those of us who believe that this verdict is unhelpful to the cause of peacemaking need to provide those families with a very good reason for why we would question these efforts at hitting back at those they deem responsible for their suffering.
Those families need to know that we are not ignoring their pain; on the contrary, we are acting in response to it, and working to ensure that it never happens to anyone else. This part of the equation must have nothing to do with which side the victims are on. Whatever differences and imbalances there may be between Israelis and Palestinians, the suffering of those who have lost loved ones, or have been traumatized or permanently injured by the violence is the same.
We are also presented here with an opportunity, however, to address one of the more vexing, if subtle, issues in this conflict, and that is the very fundamental power differences between Israelis and Palestinians. Those differences are historic and they are dictated on a daily basis by the gulf between occupier and occupied. But they play out in ways that can obscure the road to resolution.
The decisive point in this case seems to have been the fact that the plaintiffs were able to demonstrate that many of the perpetrators of the violence that killed and injured Americans in Israel were employees of the Palestinian Authority. Those perpetrators who are in Israeli jails often remained employees of the PA. Families of terrorists who died in the attacks continue to be compensated by the PA.
To the jury, and it’s probably safe to say, to most Americans, this is compelling evidence of PA complicity. Most Israelis would no doubt agree. An editorial in The Forward, which called the verdict “…a serious challenge to anyone…who still stubbornly believes that the current Palestinian leadership is capable of implementing a two-state solution,” saw this point as damning and suggested that the practice of paying families of terrorists must stop.
“What a powerful gesture it would be if Abbas stopped these payments,” read the Forward’s editorial. “It would remove one more piece of ammunition from the hands of Israeli leadership uninterested in solving the conflict. It would honor the victims of terror and acknowledge the rule of law. And — here we are probably being unduly optimistic — it would be a bold step to restore trust and prove, again, that this Palestinian leadership is willing to break from its violent past.”
Those points are all quite fair. And yet, the evidence of Abbas’ actions for over a decade overwhelmingly shows him to be a leader who eschews violence in favor of diplomacy and is willing to go farther than any Palestinian leader we know of to accommodate Israel’s security concerns and reach a two-state solution. Why, then, does he not stop those payments?
The answer lies in the day-to-day realities of Palestinian life, and in the harsh realities of occupation and the bitter conflict that has ebbed and flowed, but never ceased for so many decades.
At the time of the crimes in question, the intifada was raging and Israeli forces had responded quite harshly in the West Bank. The people, Israelis and Palestinians, across the political spectrum felt they were at war, under attack and they wanted the “bad guys” from the other side to stop endangering them and their children.
Israelis, quite correctly, feel that the brutal attacks on civilians in those years cannot be justified by Palestinians’ experiences under the occupation. Indeed, they cannot. International law does give an occupied people the right to resist their occupiers, but that right does not extend to attacking civilians in the occupying power’s territory. Such an act is nothing less than murder.
Palestinians, however, look at the years of the intifada quite differently. They see a massive Israeli incursion into the West Bank. According to the Israeli human rights group, B’Tselem, the intifada saw some 2,200 Palestinians killed who were not taking part in hostilities, as opposed to 239 such Israelis. They wonder why, when the Palestinian figure is nearly ten times bigger than the Israeli one, it is the Palestinians alone who are now being held to account.
Indeed, this is a question we should all ask.
For Palestinians, many of those engaged in violence are often the sole breadwinners of their families or at least a major source of income. For many Palestinians, however wrong we might consider it to be, these militants are seen as fighting for the independence of Palestine, for an end to the daily abuses of occupation, and ultimately, for the very lives of the people of Palestine.
If Abbas were to simply abandon those families, poverty would increase across the West Bank and so would popular opposition to the Palestinian President and his government. Even Palestinians who oppose such acts of violence, and there are a great many, would not advocate abandoning the women, elders and children who depend on the fighting-age men to the perils of increased poverty.
Cutting off these payments would be overwhelmingly unpopular among Palestinians, and that opposition is likely to undo many of the gains the Forward envisions. While it’s fair to ask what more the Palestinians can do, we should also ask what we in the United States can do, and what we might recommend to our ally, Israel, which, after all, remains the sovereign power in the territory.
The Palestinian leadership in the PA and the PLO has come a long way in their attempts to find common ground with Israel and end the occupation under which they’ve lived for almost fifty years. No one seriously believes that they were the ones leading the fight in the second intifada, nor was that the verdict reached in Federal Court this week.
Penalizing the PA because it sustains the families of convicted terrorists implies that the threat of economic ruin will dissuade terrorists from acting. Does anyone really believe that to be true? Even the plaintiffs’ case did not make the claim that the terrorists were acting under the PA’s direction, but with its tacit support, demonstrated through these payments. Militant groups are not seeking Abbas’ approval for their actions. On the contrary, Abbas has endured enormous political criticism over his security cooperation with Israel, for many years now, as they work to prevent such attacks. Both American and Israeli officials have repeatedly praised the PA’s efforts in this regard. Indeed, last year the head of Israel’s Shin Bet went so far as to publicly contradict Netanyahu’s effort to blame Abbas for rising violence in Jerusalem.
No amount of money or vengeance is going to erase a victim’s trauma, replace a lost limb, or, certainly, bring back a loved one killed by terrorism. It’s hard to see how a US civil court can play a constructive role here. Only a more forceful US, European and international policy, which presses for an end to violence on all sides and is willing to push both the parties into a reasonable agreement can do that. This is the only course that respects the blood and pain of all those who have suffered, and continue to suffer, in this conflict.