International funding for salaries and benefits to terrorists
By Amb. Alan Baker
There has recently been considerable media coverage of the transfer of donor funding from foreign governments (including the United States, the UK, Denmark and other EU countries) to official Palestinian governing bodies, and its use for salaries and other benefits to Palestinians serving prison sentences for acts of terror.
Clearly, the channeling of donor funding to compensate terrorists and thereby to encourage further terror raises serious legal and moral questions, both for the governments contributing the funds, but also in the context of international law and practice.
Current Palestinian Practice
According to the Guardian and Daily Mail newspapers:
In his recent testimony to the House Committee on Foreign Affairs on July 6, 2016, Yigal Carmon, President and Founder, of the "Middle East Media Research Institute (MEMRI)," provided detailed statistics on the extent of the Palestinian payments to terrorist prisoners. In his testimony, he stated:
Official legislation of the Palestinian Authority from 2010 places all Palestinians and Israeli Arabs imprisoned in Israel for terror crimes on the PA payroll to receive a monthly salary from the PA. Earlier legislation defines "prisoners" benefiting from this requirement, as "Anyone imprisoned in the occupation's prisons as a result of his participation in the struggle against the occupation."
While ordinary prisoners, such as car thieves do not receive a salary, every person committing acts of terror are on the PA payroll. The salary goes directly to the terrorist or the terrorist's family, and prisoners receive salary from the day of arrest. More than 5,500 Palestinian prisoners serving time for terror-related offenses are recipients.
This situation, in effect, constitutes a manipulation of international funding for the PA, through channeling donor funds to reward and compensate acts of terror and as such to encourage continued terror, in clear contravention of national and international norms and obligations.
Palestinian Attempts to Conceal Direct Payments to Terrorists
A fictional replacement infrastructure for the continued transfer of prisoners' salaries and benefits – purportedly independent of the PA and entitled the "Commission of Prisoners Affairs," – was established within the Palestine Liberation Organization (PLO).
The PLO is the internationally recognized Palestinian umbrella organization within which the PA operates as the administering body for those West Bank areas of Judea and Samaria under Palestinian jurisdiction. As such the PLO, as the parent organ of the PA, is no less obligated and committed, by its agreements with Israel to refrain from all activity connected to terrorism, including the transfer of funds to terrorists.
In this manner, the Palestinian leadership hoped that indirect funding of prisoners through the PLO would not be seen by foreign donors to contravene national and international counter-terror legislation, policies and instruments. In fact, governments tended to view this fiction as a satisfactory solution to the issue.
However, this fictional manipulation has not altered the fact that foreign donations are being used to pay salaries and benefits to terrorist prisoners.
As stated by Palestinian Media Watch:
This manipulation of the bona fides of foreign donor governments constitutes, however, a clear violation both of national counter-terror legislation of the donor countries, as well as the agreements between the PLO and Israel, witnessed by the same governments (including the U.S. and EU) providing the donor funding.
It also seriously violates and undermines accepted and agreed-upon norms of international law as set out in international counter-terror conventions and UN Security Council resolutions.
The PLO-Israel Agreements
The "Oslo Accords" and their related documents, signed between the Palestinian leadership and Israel (the Declaration of Principles on interim Self-Government Arrangements, commonly known as "Oslo I" (1993), the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, commonly known as "Oslo II" (1995) and other related documents, constitute the accepted and recognized framework that determines all aspects of the Israeli-Palestinian relationship.
The Oslo Accords are a series of agreements between the "Palestine Liberation Organization (PLO), representing the Palestinian People," and the Government of the State of Israel.
The PLO is an umbrella organization whose members include a number of Palestinian terror groups such as al Fatah and the Popular Front for the Liberation of Palestine (PFLP).
The Palestinian Authority (PA), as distinct from the PLO, is the subordinate governing body established by agreement between Israel and the PLO in the Oslo Accords for the purpose of administering the areas and implementing the powers and responsibilities transferred to it by Israel.14
The PA was established only for the purpose of administration and governance, and its responsibilities are limited solely to this sphere. In this context, both the PLO and the PA are prohibited by the Oslo Accords from conducting foreign relations or signing agreements or doing anything that does not relate to the internal governance of the areas under its jurisdiction.
As such, the PA is nothing more than a "creature of the PLO-Israel agreements. "Accordingly, the obligations of the PLO pursuant to the Oslo Accords – including the obligation to refrain from, to act against, and to discourage terror – are equally applicable to the PA.
In the Oslo Accords, the PLO is formally committed to combat all forms of terrorism, violence, and incitement.
Clearly, transfer of donor funding for payment of salaries and benefits to persons imprisoned for acts of terror would appear to be incompatible with this requirement, whether such payments are channeled through the PLO or the PA.
Accordingly, transfer by the PLO of donor funding for payment of salaries to terrorists in prison runs solidly counter to PLO obligations vis-à-vis Israel pursuant to the Oslo Accords, as well as vis-a-vis the U.S., the EU and the other signatories who signed the Accords as witnesses.
By the same token, transfer of such donor funds by the PA as the subordinate, implementing authority, constitutes no less a violation of the Palestinian obligations.
National Counter-Terror Legislation
Channeling donor funds to terrorists is contrary to the national law in the donor countries as well as to international counter-terrorism law.
In the United States, the "Consolidated Appropriations Act, 2010: Assistance for the West Bank and Gaza", Section 7039(b) requires that:
International Law and Practice
From the very beginning of the international efforts to counter terrorism, the issue of financing terror has consistently figured as a major and central component of international terror. Hence the obligations in international and regional treaties as well as UN resolutions, to act to prevent terror financing, especially inasmuch as it constitutes a form of encouragement and support, both moral and practical, for terrorism.
The resolution obliged states to cooperate in combating international terror and criminalized all provision of funding for terrorist use, determined a freeze on, and prohibition of transfer of funds and assets of persons who commit terrorist acts.
In light of the above, it is clear that the use of international funds for the purpose of paying the salaries and benefits of terrorists serving prison sentences for acts of terror is the very antithesis of any bona fide, positive international action to encourage peace and stability in the Middle East.
It constitutes first and foremost a violation both of the specific Palestinian obligations pursuant to the Oslo Accords. It undermines and contravenes accepted norms and obligations encapsulated in international legal instruments, including the 1999 UN Convention for the Suppression of the Financing of Terror and the 2001 UN Security Council resolution to combat international terror, and others.
The use of U.S. and European governmental funds for the direct or indirect payment of prisoners' salaries runs against the very spirit of their respective counter-terrorism policies, as well as against their active involvement in the Israeli-Palestinian peace process.
Amb. Alan Baker is Director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan, and Lebanon. He served as legal adviser and deputy director-general of Israel's Ministry of Foreign Affairs and as Israel's ambassador to Canada.