Published on January 6th, 2015 | by Lara Friedman3
Explainer: US Law & Abbas’ Post-UNSC Moves
by Lara Friedman
As anybody who follows Israeli-Palestinian issues knows, on December 31, 2014, after the UN Security Council rejected a Jordanian-backed resolution that would have imposed terms of reference and a timeline for Israeli-Palestinian peace talks, Palestinian President Abbas did something – not everyone seems clear what – in the international arena. This Q&A looks at what Abbas actually did and did not do, and what U.S. law says about those actions.
Q: What did Abbas do following the failure of the Jordanian-backed UNSC resolution?
A: On December 31, 2014, Abbas signed 18 international treaties and conventions. These are:
- The Convention on the Political Rights of Women;
- The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the ‘New York Convention’);
- The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal;
- The Convention on Biological Diversity and the Cartagena Protocol on Biosafety to the Convention on Biological Diversity;
- The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II);
- The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III);
- The Convention on the Law of the Non-Navigational Uses of International Watercourses;
- The Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents;
- The United Nations Convention against Transnational Organized Crime;
- The Convention on the Safety of United Nations and Associated Personnel and the Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel;
- The United Nations Convention on the Law of the Sea;
- The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity; the Agreement on the Privileges and Immunities of the International Criminal Court;
- The Rome Statute of the International Criminal Court;
- The Declaration in accordance with the Rome Statute of the International Criminal Court;
- The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons; and
- The Treaty on the Non-Proliferation of Nuclear Weapons; and the Convention on Cluster Munitions.
Q: What does U.S. law promise in terms of sanctions if the Palestinians sign international treaties and conventions?
A: There is nothing in U.S. law barring the Palestinians from signing international treaties or conventions, or threatening them with punitive action if they do so. U.S. law –as adopted in recent years by Congress and most recently less than a month ago in the FY15 Omnibus Appropriations bill – imposes sanctions on the Palestinians if they become members in any UN agency. The law says nothing about signing treaties or conventions, despite the fact that the Palestinians have taken similar steps before and had previously made clear that continuing with the strategy of signing treaties and conventions was possible, if not likely (as in, this shouldn’t have surprised anyone).
Q: Doesn’t U.S. law impose sanctions on the Palestinians for any further steps toward recognition or increased standing in the international community?
A: Two different U.S. laws impose sanctions if the Palestinians gain membership in any further UN agencies – cutting off aid to the Palestinians [see Sec. 7041(j), A(i)(I)] and de-funding the agencies in question. Abbas didn’t cross this red line in U.S. law, since he didn’t seek or gain membership in any further UN agencies. Arguably, the law requiring a cut-off of U.S. funds to agencies that admit the Palestinians might be applied to UN agencies that exist as a direct function of specific conventions and treaties, but in most if not all cases that does not appear to be an issue here.
Q: What about the International Criminal Court (ICC)? Abbas joined that, didn’t he?
A: Among the conventions and treaties Abbas signed on December 31, 2014 was the Rome Statute, which will in all likelihood make the Palestinians a member of the ICC (the issue is pending, as of this writing). However, the ICC is not a UN agency. The ICC is legally and financially independent of the UN, so Abbas’ action doesn’t trigger the cut-off in funding for the Palestinians linked to joining an agency (and the U.S. in any case doesn’t fund the ICC, since the U.S. is not a party to the Rome Statute).
Q: Isn’t there another part of the law just dealing with the ICC?
A: The FY15 Consolidated Appropriations bill passed last month by Congress [see Sec. 7041(j), A(i)(II)] cuts off all aid to the Palestinians 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.”
That bill, signed into law on December 16, 2014, does NOT require that sanctions be imposed on the Palestinians simply for seeking to join the ICC, or for being admitted as a member to the ICC, or even for asking the ICC to investigate Israelis. That law, as adopted by Congress less than a month ago, imposes sanctions ONLY if the ICC actually ends up investigating Israel, as the result of action initiated or supported by the Palestinians. In short, under current U.S. law, the Palestinians’ actions thus far fall short of tripping this legal trip-wire.
Q: That all may be true, but members of Congress are talking about punitive action for what Abbas did. What’s the story?
A: This appears to be the latest example of some in the U.S. Congress refusing to take “yes” for an answer from Abbas. Following the UNSC vote, Abbas took an action that was carefully calibrated to not cross any of the red lines laid down in law by Congress – and in response, some in Congress cried foul. We saw the same thing not long ago, when the Palestinians formed a reconciliation government that very deliberately met all Congressionally-mandated requirements. The response of many in Congress was to denounce Abbas and demand sanctions. Today we are seeing more of the same. This may be a case of some in Congress feeling like Abbas has “cheated” by obeying the letter but not the spirit of the law. Or it may be a case of lawmakers’ remorse – wishing now that they had not left open any loophole and trying to make amends to right-wing supporters. Or it may be a case of Congressional double-dipping – members actually welcoming a new opportunity to show how tough they can be on the Palestinians. More broadly speaking, this refusal is in line with the ongoing trend of right-wing forces in the U.S. and Israel to use Congress to try to cut off any possible path for Abbas other than capitulation or violence.
Q: What happens next in Congress?
A: Congress could pass new legislation closing the loopholes in the current law to try to prevent Abbas from signing more treaties (or to punish him if he does). Congress could pursue legislation post-facto punishing Abbas for what he did this time. Congress could amend the ICC law to punish Abbas for raising even a question about Israel, regardless of whether the ICC takes action. Or Congress could look for other ways to punish the Palestinians, including passing legislation imposing sanctions against the Palestinians (and potentially on the UN or member states) if the UN Security Council or UN General Assembly adopts terms of reference or a timeline for negotiations. Time will tell.
Q: What about the Palestinians? What happens next?
A: There are a few things to watch here. First, will the Palestinians go ahead at the ICC with efforts to seek an investigation targeting Israel and Israelis? If yes, and if they are successful, then U.S. sanctions, under current law, will come into play – sanctions for which there is no waiver. Second, there is the possibility that the Palestinians, if thwarted again by the U.S. in the Security Council, will join other UN agencies, something they have had the ability to do since 2011. If they do, under two separate U.S. laws, two separate kinds of sanctions come into play. First, the law passed less than a month ago, signed into law 12/16/14, will require a cut-off of all aid to the Palestinians; second, the longstanding, anachronistic law will require the U.S. to defund the UN agencies involved. There is a waiver for the former, but not the latter (which is why the U.S. stopped funding UNESCO after the Palestinians joined in 2011).
Q: Outside of the implications for Israelis and Palestinians, why is any of this really a big deal? Why should anyone really care?
A: All of this is a big deal because Congress has constructed U.S. law in such a way that it is not an exaggeration to say that the health and survival of the entire UN system has been linked to the Palestinians. Congress requires U.S. aid to the Palestinians to be cut off if the Palestinians join any UN agency – but grants the President the authority to waive the cut-off for U.S. national security reasons. At the same time, longstanding, anachronistic U.S. law requires the U.S. to de-fund any UN agencies that admit the Palestinians – but Congress included no waiver authority and some in Congress have made clear in recent years that they oppose adding any such waiver. In short, if the Palestinians eventually join other agencies – something they can do anytime – the U.S. will be compelled to take actions that could seriously weaken or bring down the entire international system. Such action would of course represent a clear threat to U.S. national security interests – a case of Congress cutting off America’s nose to spite its face – threatening the entire UN system to punish it for refusing to toe the U.S. and Israeli line with respect to treatment of the Palestinians.
Q: What would be the big deal about the U.S. de-funding UN agencies? The U.S. de-funded UNESCO and life went on just fine.
A: Most Americans didn’t notice or care that the U.S. de-funded UNESCO, because UNESCO has no direct impact on their lives. The same can’t be said about other UN agencies. Those who think that weakening or bringing down the UN system wouldn’t be a big deal should talk to trade experts about what would happen if the World Intellectual Property Organization(WIPO) – one of the foundations of the modern global economy – fell apart. Or talk to nuclear non-proliferation experts about the dangers of losing the International Atomic Energy Agency (IAEA). Or talk to health experts about the dangers of losing the World Health Organization (WHO) in an era of increasing global health threats like Ebola. And Congress should consider this: concern about the Palestinians joining UN agencies, and the impact of such a move on the international system, appears to have played a significant role in European support for the recent UNSC resolution. Finally, those who think that de-funding UNESCO was no big deal would do well to take a moment to watch the Daily Show’s report on the topic: America’s Problem with UNESCO Pt. 1; America’s Problem with UNESCO Pt. 2
Q: If U.S. interests are really in jeopardy if a UN agency fails, wouldn’t Congress just add a waiver?
A: It is possible that if the Palestinians go the route of joining UN agencies, Congress could amend the law to add national security waivers, which would most likely be limited and subject to conditions. However, some things to keep in mind:
First, it is by no means a certainty that Congress would do so. There are those in Congress today who are as hostile to the UN as they are to the Palestinians, and who would likely oppose – ardently – any efforts to “water down” the existing law. And even is such waivers were added to the law, that would not be the end of the problem. And it is likely that conditions on such waivers would mean that even for those agencies that Congress wanted to keep funded, funding would become an annual battle.
Second, if Congress were to grant limited wiggle room for the U.S. to avoid harming its own interests by de-funding UN agencies that admit the Palestinians, any such wiggle room would almost certainly be offset by some new form of punitive legislation targeting the Palestinians and/or the UN. This is not idle speculation. For years there have been those in Congress who have tried to go after the various UN agencies, organizations, and committees that deal with the Palestinian issue. This is especially true with respect to the UN Relief and Works Agency (UNRWA), which some in Congress (and in Israel) seem determined to shut down. Such efforts would likely ramp up in the context of any waiver of the existing law regarding the Palestinians joining UN agencies.
Third, and most importantly for the world, is this: If, based on the Palestinians’ joining UN agencies, Congress adopts a policy of arbitrarily deciding which UN agencies the U.S. will fund/de-fund on a case-by-case basis, this will likely be the death of the UN system. Congress might well decide to fund WIPO, the IAEA, or the WHO, but what about the other agencies that have no U.S. domestic constituency? These are agencies that help the sick, the poor, the most vulnerable around the world, but that Americans don’t necessarily see as having an impact on their lives. It is not a stretch to argue that the UN system will not survive if the U.S. – the UN’s largest donor – adopts a de facto policy of selectively funding only those agencies that Congress deems important to the U.S., leaving agencies that serve the rest of the world (like UNESCO) to struggle and wither on the vine.
The 12/12/14 Legislative Round-Up — for detailed analysis of Middle East provisions in HR 83, the FY15 Cromnibus bill
Text of HR 83 – the FY15 Cromnibus bill [relevant provisions found in Sec. 7041(j), A(i) and A(ii)]
11/3/11 analysis, Hijacked by Legislative Anachronisms – comprehensive look at U.S. legislation cutting of funding to UN agencies if they admit the Palestinians
*This article was first published by Americans for Peace Now (APN) and was reprinted here with permission. Copyright APN.