Commentary Magazine


Kirk: Aid to Fatah-Hamas Axis Would Be Illegal

Two days ago, Sen. Mark Kirk tweeted that the Fatah-Hamas unity government would put the Palestinian Authority’s U.S. aid at risk, and this morning his office followed up by emailing a memo outlining the legal implications of the deal.

Kirk, along with Rep. Nita Lowey, helped to author the restrictions on U.S. assistance to the PA, and he writes that under the Section 1107 provision of the 2009 Supplemental Appropriations Act, no U.S. funds may be provided for:

1)   salaries of personnel of the Palestinian Authority located in Gaza;

2)   assistance to Hamas or any entity effectively controlled by Hamas; or

3)   any power-sharing government of which Hamas is a member, unless the President certifies to Congress that “such government, including all of its ministers or such equivalent, has publicly accepted and is complying with” the core requirements of the Palestinian Anti-Terrorism Act of 2006, which are:

a.   publicly acknowledging the Jewish state of Israel’s right to exist; and

b.   committing itself/themselves and adhering to all previous agreements and understandings with the United States Government, with the Government of Israel, and with the international community, including agreements and understandings pursuant to the Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict (commonly referred to as the ‘Roadmap’)

Based on this language, Congress clearly would have no choice but to cut off aid to a Fatah-Hamas unity government. Moreover, Hamas has (unsurprisingly) shown that it has no plans to adhere to the Palestinian Anti-Terrorism Act of 2006. If there was any doubt about this, Hamas Prime Minister Ismail Haniyeh called on Fatah today to renounce its recognition of the state of Israel.