International Criminal Court hints Palestinians may be guilty of war crimes over ‘pay for slay’

Law professor Eugene Kontorovich said for the first time, the ICC has raised a terror program as a possible war crime; still, that “should not whitewash or smokescreen their bias against Israel and the great unlikelihood that they will take any serious action against the Palestinians.”

The International Criminal Court, The Hague, Netherlands. Source: Wikimedia Commons.
The International Criminal Court, The Hague, Netherlands. Source: Wikimedia Commons.

The Palestinians were just hit by a judicial bombshell.

Last week, the International Criminal Court (ICC) published its Office of the Prosecutor Report. While it predictably accused Israel of false war crimes in Judea and Samaria, it also, for the first time, subtly mentioned that the Palestinian Authority could be guilty of war crimes over payments to terrorists.

Article 222 states: “The PA have encouraged and provided financial incentives for the commission of violence through their provision of payments to the families of Palestinians who were involved, in particular, in carrying out attacks against Israeli citizens, and under the circumstances, the payment of such stipends may give rise to Rome Statute crimes.”

Eugene Kontorovich, a professor at George Mason University Law School and director of its Center for International Law in the Middle East, told JNS that while accurate and commendable, the mere fact that the ICC has for the first time raised “pay for slay” as a possible war crime “should not whitewash or smokescreen their extraordinary bias against Israel and the great unlikelihood that they will take any serious action against the Palestinians.”

Kontorovich noted that the most striking thing about the ICC report is that it has dropped all mention of Russian settlements in Crimea and concluded that the issue was not a war crime. “So the overall gist of this work is that settlements—the crime of living somewhere—is only a crime that Jews can commit,” he said.

“The fact that [the ICC] is generous enough to consider that murder for hire might also be a war crime shouldn’t obscure this fact,” added Kontorovich. “I think their approach is overwhelmingly one-sided, not to mention that the court has an extremely bad record of taking action against leaders of incumbent non-democratic regimes.”

In addition to this newfound interest by the ICC, both Israel and the United States have been working to stem the P.A.’s ability to pay terrorists.

Israel’s anti-“pay-for-slay” law, which was passed in 2018, says that the state must deduct and freeze the amount of money that the P.A. pays terrorists and their families from the tax revenue that Israel gives the P.A.

Satellite picture of Crimea, 2015. Credit: NASA.

‘They pay tens of millions a year in terror salaries’

For its part, Congress passed the Taylor Force Act, signed into law in 2018, which prohibits certain economic assistance to the P.A. until it ceases paying stipends through the P.A. Martyr’s Fund to individuals who commit acts of terrorism and to the families of deceased terrorists.

Congress also passed the Anti-Terrorism Clarification Act (ATCA) in 2018 in the wake of a federal lawsuit known as Waldman v. PLO that an appeals court dismissed in 2016 claiming there was a lack of personal jurisdiction over the PLO. To address this flaw, Section 4 of ATCA allows federal courts to exercise personal jurisdiction over a foreign non-state defendant that accepts benefits, such as financial assistance, from the United States.

The scene of a terror attack where a Palestinian man stabbed an Israeli security guard at the entrance to Karmei Tzur in Judea, south of Jerusalem, on Feb. 7, 2018. Photo by Photo by Wisam Hashlamoun/Flash90.

Kent Yalowitz, the New York attorney who led the trial team in that court case and secured a $655 million jury verdict against the P.A. and the PLO in favor of 11 American families injured in terrorist attacks, told JNS, “There’s been an argument that $650 million would bankrupt the P.A. and that’s just a lie. They pay many tens of millions a year in terror salaries. That’s a lot of money. They have a reported budget of $5.5 billion a year, with a lot of fat in it, and they have a reputation for not accounting for all of their funds transparently.”

Since ATCA passed, analysts warned that the security coordination between Israel and the Palestinians would be at risk.

“That argument has proved baseless,” said Yalowitz.

Some analysts have also warned that ATCA may apply to foreign states, impacting allies in the Middle East, such as Egypt or Jordan. For this reason, among others, a new bill—the Promoting Security and Justice for Victims of Terrorism Act—has been introduced and is under review, and has been placed on the Senate’s legislative calendar. The bill more closely adopts the language of the Taylor Force Act, stating if an entity is systematically paying terrorists, then it is subject to U.S. jurisdiction.

Since the Palestinians are the only ones doing this, it seems clear that it only applies to them and not other states.

‘Israeli government decided to finally take action’

Sens. James Lankford (R-Okla.), member of the Senate Finance Committee, Tammy Duckworth (D-Ill.) and Chuck Grassley (R-Iowa), chairman of the Senate Finance Committee, introduced the bill, which seeks to close some loopholes in previous legislation and to provide justice for U.S. victims of international terrorism while also promoting security cooperation between Israeli and Palestinian security forces.

With respect to American victims of Palestinian terrorism, the bill would strengthen ATCA. The legislation affirms the “fundamental principle that normal participation as part of the international community, or engaging in certain conduct in the United States, demands first answering for prior support for terrorist acts.”

The P.A. has been active in opposing any such legislation, and representatives have met with Sen. Dianne Feinstein (D-Calif.) among others, but it remains to be seen how successful they will be.

Ori Ansbacher, who was raped and murdered by a Palestinian Arab in early 2019. Credit: Courtesy of the Ansbacher family.

According to Maurice Hirsch, head of legal strategies for Palestinian Media Watch (PMW), Feinstein recently tabled a bill to repeal ATCA because it does not allow Palestinians to receive money without agreeing to U.S. jurisdiction. She also wants to cancel the Antiterrorism Act of 1990, which makes it easier for victims of terrorism to sue terrorists.

PMW has called for Israel to withhold an additional NIS 241 million (about $69 million) before the end of the year. Hirsch explained how extensive research has been carried out to determine, according to the P.A.’s own monthly budget reports, how many terrorists and families receive money. According to Hirsch, the P.A.’s Ministry of Prisoners report in 2018 listed NIS 502 million (roughly $144 million).

“After the [rape and] murder of [19-year-old] Ori Ansbacher [by a Palestinian Arab man] earlier this year, the Israeli government decided to finally take action and begin activating the law,” he said.

In February 2018, Israel withheld $138 million (approximately NIS 503 million) from the Palestinians.

Given that Israel has only an interim government at the moment, chances are low that any further deductions will be made this year from Palestinian tax transfers.

The question remains what will happen with the Promoting Security and Justice for Victims of Terrorism Act in the Senate, as well as the ICC’s new recognition of possible Palestinian war crimes related to the “pay-for-slay” program.

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