Over the holiday weekend, NPR’s Jerusalem correspondent published a letter Palestinian Authority Prime Minister Rami Hamdallah sent Mike Pompeo in late December, informing the U.S. secretary of state that the PA would no longer accept financial assistance from Washington. This includes funding for the Palestinian Authority Security Forces (PASF), an umbrella term for the PA’s eight paramilitary, police, and intelligence services. The Trump administration had eliminated aid for most projects in the West Bank and Gaza over the last year, but security assistance survived the clearly partisan and punitive purge. Then, in early October, Congress passed the Anti-Terrorism Clarification Act (ATCA), which takes effect on February 1. The new law stipulates that taking U.S. foreign aid equals consent to the personal jurisdiction of U.S. courts, meaning the recipient of American funds can be sued in American courts. The PA doesn’t want to be sued (the law’s clear aim, from the offing, is to make such an eventuality possible), so it isn’t taking any U.S. money.
What was the situation before the ATCA?
Lawsuits had been filed in U.S. courts against the PA and P.L.O., alleging they had facilitated terror attacks in which the plaintiffs and their family members were injured or killed. U.S. courts ultimately determined they lacked personal jurisdiction over the defendants in these cases (although judges and juries in lower courts have ruled favorably for the plaintiffs). This means the courts lacked authority over the Palestinians, a foreign entity sued for actions committed overseas, as a party to the suit. The sponsors of the ATCA aimed to preempt such obstacles in the future.
How does someone even sue a foreign government like the PA in U.S. court?
Foreign governments have long been protected from litigation in the United States under the Foreign Sovereign Immunities Act (FSIA). However, a 1996 amendment to the FSIA allowed Americans to sue governments listed as state sponsors of terrorism (a U.S. State Department designation). With this change, families of victims of the 1988 Pan-Am Lockerbie bombing sued the Libyan government. This also allowed the family of Otto Warmbier to sue North Korea, which is listed as a state sponsor of terror. However, the Palestinian Authority and P.L.O. are not subject to this classification. Although U.S. courts had previously ruled the PA and P.L.O. were not under their personal jurisdiction, the ATCA places recipients of American aid under the authority of the United States justice system.
If a court rules in favor of a plaintiff suing a foreign government, how do they collect damages?
The assets of government officials held in the United States can be frozen, as was the case with Libya — and this could potentially be the case with the PA and P.L.O. Ultimately, the Libyan government settled its debt in order to improve relations with the United States. In other instances where the U.S. lacks leverage (such as in North Korea), a ruling and order to pay damages is mostly symbolic.
Have the Palestinian Authority Security Forces been involved in terrorist attacks?
Many of the terror attacks cited in the lawsuits brought against the PA/P.L.O. occurred during the Second Intifada (2000-2005). In that period, PA paramilitaries and police turned their guns against civilians and Israeli soldiers in Israel and the occupied territories. The Arafat-era PASF, as a rogue institution, was routed by the Israeli military, which reoccupied cities nominally under Palestinian Authority control.
What is the situation with the Palestinian Authority Security Forces today?
In the aftermath of the Second Intifada and the death of Yasser Arafat, the various services of the PA Security Forces were restructured, rehabilitated, and professionalized, in no small part because of American assistance. Thus, the pre- and post-Intifada PASF are in many ways different institutions.
This distinction does not absolve the perpetrators of terror attacks of responsibility for their actions, nor does it address the very serious issue of incitement by PA leaders, including President Mahmoud Abbas. However, it is worth noting in the current context, especially as it concerns how the ATCA and the PA’s rejection of U.S. aid would impact Israeli-Palestinian security coordination.
In sharp contrast with the Arafat era PASF, the post-Second Intifada security services have worked successfully to combat rejectionist groups in the Palestinian Territories, as well as to prevent attacks against Israeli soldiers and civilians, despite rising public pressure cooperation with Israel as it trends away from supporting a two-state solution. Security coordination with the PASF has been lauded by many seemingly unlikely figures, from U.S. President Donald Trump to former IDF Chief of Staff Gadi Eisenkot. Because of this, the Israeli government has asked for an amendment to the ATCA that would spare the PASF, but this will be nigh impossible amid the ongoing government shutdown.
Thus, the issue today is not with the PASF. Lawsuits made possible by the ATCA would likely not target offenses by the PASF, at least not in the last decade-and-a-half. Rather, the so-called “martyr’s fund,” the financial support the PA offers to terrorists in Israeli jails, their families, and the families of slain terrorists, would likely be cited as incentivizing or facilitating of terrorist attacks.
How does the United States support the Palestinian Authority Security Forces?
Before the Trump administration’s complete cutoff of American aid projects in the West Bank and Gaza last year, U.S. assistance for the Palestinians came from a number of accounts. The U.S. ended contributions to humanitarian and governance projects under the Economic Support Fund (ESF) for FY 2018 (the fate of such projects in FY 2019 remains undetermined), as well as donations to UNRWA. However, support for the PASF comes through a different fund, the International Narcotics Control and Law Enforcement (INCLE) account. INCLE funding was the only bilateral aid to the Palestinians untouched by both White House action and the Taylor Force Act, another piece of legislation aimed at sanctioning the PA for alleged support of terror. It is this money that the Palestinians are now rejecting in order to escape potential litigation made possible by the ATCA.
U.S. aid to the PASF expanded significantly after the Second Intifada. In the mid 1990s, the United States was contributing just $5 million a year to the Palestinian security services to help pay salaries. By contrast, the INCLE budget for 2019 is $35 million, encompassing non-lethal equipment, training, and professionalization. Washington also established the U.S. Security Coordinator in Jerusalem (USSC), an office held by an American general who manages the implementation of American aid to the PASF. This grants the United States significant oversight in the facilitation of aid to the Palestinians.
In the absence of American aid, what outside security support will the PASF receive?
The European Union maintains its own mission, the EU Coordinating Office for Palestinian Police Support (EUPOL COPPS). However, EUPOL COPPS provides training to just one service, the Palestinian Civil Police, and its annual budget (a little over $10 million USD) is less than a third of what the United States had earmarked for the PASF for this year. Recently, EUPOL COPPS was subject to an internal corruption investigation, stalling its activities and undermining its credibility. The PASF have received equipment and training from Russia and Arab governments, but nothing systematized in the manner of American aid nor on the same scale. Thus, no real substitute exists in the Palestinian security sphere for present U.S. support.
What happens next?
In the week remaining before the ATCA goes into effect, the Trump administration may seek a waiver or other kind of work-around to preserve aid to the PASF, but prospects for such a solution are not promising. After the ATCA’s passage in October, the Trump administration mobilized the incumbent USSC, Lt. Gen. Eric P. Wendt, in an effort to convince legislators to exempt the PA and P.L.O. Lawmakers produced no such fix; after all, the point of the legislation (though unstated in its text) is to expose the PA and P.L.O. to litigation. The ATCA responds to the real and painful concerns of American citizens who have been harmed and seen loved ones maimed and murdered in terrorist attacks. The question policymakers must now confront is how best to achieve justice for these individuals, and whether it must come at the expense of a successful program like the PASF.
