In 2017, Congress passed the bipartisan Taylor Force Act (TFA) to put an end to the Palestinian Authority (PA) practice of using US taxpayers’ dollars to finance “Pay for Slay,” a policy rewarding terrorists and family members of imprisoned and deceased terrorists. The legislation’s clearly expressed goal is to deny the PA funding until it stops their program of incentivizing and paying for the murder of civilians.
The bill was named after an American Army veteran who had served in Iraq and Afghanistan and was killed by a Palestinian terrorist while visiting Israel. The PA media called his killer a “martyr,” and he was venerated throughout the Palestinian territories.
The Taylor Force Act requires the Biden State Department to issue a report to Congress for Acts of Terrorism. Despite the report’s conclusion that the PA “has not terminated payments for acts of terrorism to any individual (and) has also not taken proactive steps to counter incitement to violence against Israel,” the administration’s report states that the “Biden-Harris Administration has made clear its intent to restart assistance to the Palestinians in the West Bank and Gaza.”
Which is to say, they intend to ignore the continued support of terrorism and resume supplying the money.
WORKERS CLOSE the aid distribution centers of the UN Relief and Works Agency for Palestine Refugees in Rafah in February, protesting against the reduction in food aid. (photo credit: ABED RAHIM KHATIB/FLASH90)
The Biden administration claims it can restore funding to the PA without violating the TFA. It claims its goal is to provide humanitarian assistance, rebuild trust with the Palestinians that was undermined by the Trump administration, economically stabilize the government while advancing the moribund peace process with Israel.
The Trump administration cut off funding to the PA and UNWRA, the UN agency that financially supports descendants of Palestinian refugees. The Biden administration is also planning as a goodwill gesture to reverse Trump’s decision to close the PLO / PA office in Washington, which was done to give more consequence to their continuing to incite and pay for terrorism.
The State Department report is clear enough; it says the “PA expressed its intention to expend approximately $151.6 million in payments to convicted prisoners, administrative detainees, and former prisoners (and) expressed its intention to expend approximately $191 million in support of families of deceased Palestinians referred to as ‘martyrs’ by the PA.” In November 2020, PA President Mahmoud Abbas said they would “remain loyal to the souls of martyrs, the blood of injured, and the sufferings of prisoners… we will not abandon them.”
The perverse incentive used by the PA is that the more gruesome and worse the attack, the more money the imprisoned “martyr” and his family receive through the PA’s Martyr’s Fund. The PA spends nearly $350 million per year on Pay for Slay, but just $220 million for its other welfare programs for the rest of its citizens.
In Washington today, everything is seen through a political lens. In 2017, Senate minority leader Chuck Schumer said, “Abbas has to stop making payments to terrorists and their families, and all elected officials should call them out.” Will Schumer, now majority leader, challenge the president of his party to keep the pressure on the Abbas and enforce the law? Or will he go along with spinning some words to fashion a legal loophole to allow money to flow to the PA? The PA would like to create a legal fiction by distributing the money through the PLO, Abbas being both the president of the PA and head of the PLO.
For the first time in 16 years, the Palestinian people will be voting for a new president and parliament. The list of potential candidates is not promising if you are looking for moderation. The leading candidates try to outdo one another with their non-conciliatory rhetoric and incitement of violence.
The Biden administration should learn from prior administrations’ failures. America giving the PA carrots without reciprocal concessions has never been fruitful. As surely as the sun rises in the east, giving up leverage for nothing gets you nowhere with the PA/PLO.
The administration needs to uphold the Taylor Force Act.
How can a democratic nation fight and defeat asymmetric enemies in the 21st century?
Previously published in the Jerusalem Report.
by Dr. Eric R. Mandel
The recent International Criminal Court decision to investigate Israel for “war crimes” in the West Bank (Judea and Samaria) highlights not only the hypocrisy of the international community’s anti-Israel bias but the difficulty of militarily responding to terrorists who play by no rules.
Can America and Israel ever receive a fair hearing in analyzing the complexity and legality of their military actions against asymmetric actors? Especially when international bodies like the UN Human Rights Council are dominated by some of the worst human rights abusers in the world. These anti-American and anti-Zionist organizations have become weaponized political instruments in a war of lawfare against the US and the Jewish nation.
Israel faces asymmetric threats from Hezbollah, Hamas, and Iranian-controlled militias in Syria and Iraq. America has at least a 40-year history of fighting non-state actors in the Middle East – from the Iranian-orchestrated bombing of the US Embassy in Beirut to one of the worst asymmetric actors, Islamic State.
Israel’s dilemma is that what the US did to ISIS, with civilians embedded within its terrorist network, would not be tolerated by a world with double standards for the Jewish state. Israel will continually be delegitimized for its response to attacks from civilian areas, where its enemy cynically uses civilians as human shields.
Proportional responses are a matter of ongoing debate in this murky environment. Let’s be clear: “Proportionate” does not mean that if Hezbollah or Hamas sends 100 missiles indiscriminately into Israeli civilian communities, Israel should be expected to send 100 missiles into Palestinian or Lebanese communities. That is immoral and would never even be considered by any democracy, especially Israel or the US.
Articulating a policy on what constitutes a proportional response in asymmetric warfare is both in American and Israeli interests. This past February, the US struck Iranian-controlled weapons depots in Syria in retaliation for an attack on American soldiers at a US base near the Erbil international airport. One American soldier was injured, but 22 Iranian militiamen of the terrorist organizations Kataib Hezbollah and Kataib Sayyid al-Shuhada were killed, according to the Syrian Observatory for Human Rights. Is that proportionate or disproportionate?
According to Pentagon spokesman John Kirby, “The strikes were necessary to address the threat and proportionate to the prior attacks.”
What is not acknowledged by critics is that it is well within the bounds of international law to retaliate even if the number of casual ties turns out to be more than were incurred, especially if the enemy deliberately uses civilians’ lives for propaganda purposes.
When civilians are inadvertently killed in homes where missiles are stored or whose living room is used as an entrance for an attack tunnel, is it still legal to attack those homes as long as you try to minimize civilian casualties? How do you cope when your intelligence finds kindergartens or hospitals used by terrorist organizations to store weapons or mount operations against your civilians? Israel has called off many operations, walking the fine line between a nation’s obligation to protect its civilians and its moral responsibility to minimize danger to the enemy’s non-combatants.
What is a proportionate response? It behooves Israel, the US and all Western nations not to wait until after civilians are killed in confronting an enemy, but to clearly state what proportionality is, and in a very public way.
Proportionality is wholly misunderstood by democratic governments, the press and the public. It is not the number of causalities that determines proportionality but the necessity of the military action balanced against the potential civilian loss.
Source: Alma Research and Education Center
As Victor Davis Hanson said, “Every Hamas unguided rocket is launched in hopes of hitting an Israeli home and killing men, women, and children. Every guided Israeli air-launched missile is targeted at Hamas operatives, who deliberately work in the closest vicinity to women and children.”
According to Human Rights Watch, no fan of Israel, for a specific attack on a military objective to be lawful, it must discriminate between combatants and civilians. The expected loss of civilian life or property cannot be disproportionate to the attack’s anticipated military gain.
Does Israel take care to avoid civilian casualties, even when they are purposely placed in harm’s way?
Asa Kasher, the co-author of the first IDF Code of Ethics, said, “We can’t separate the terrorist from his neighbors. The terrorists have erased the difference between combatants and non-combatants. They operate from within residential areas. They attack civilians. The world doesn’t have a clue what proportionality is. Proportionality is not about numbers.”
According to international law, the question of proportionality is whether the military benefit justifies the collateral damage. As for B’Tselem, Human Rights Watch and Amnesty, all have double standards. For them, there is the poor, pitiful side and the strong side. Testimony that comes from the pitiful side is taken at face value. They think it is immoral to give priority to the defense of the citizens of your state over the protection of the lives of the neighbors of the terrorists.”
The number of casualties, civilian or combatant, is not a determinate for proportionality. War crimes and proportionality are for those who target civilians, are indiscriminate in their attacks, or cause disproportionate civilian loss. Israel does not target civilians, but you would not know that from reading European newspapers or reports from so-called human rights organizations in which body counts determine proportionality.
Jeffery Goldberg, writing in 2014, hit the nail on the head in describing terrorist actors. “Hamas is trying to get Israel to kill as many Palestinians as possible. Dead Palestinians represent a crucial propaganda victory for the nihilists of Hamas. It is perverse but true. It is also the best possible explanation for Hamas’s behavior because Hamas has no other plausible strategic goal here.” This is the strategy of Hamas, Iran, Hezbollah and ISIS.
As Middle East analyst, British Col. (ret) Richard Kemp said, “Of course innocent civilians are killed in every war; war is chaotic and confusing, and mistakes are frequent, but mistakes are not war crimes.”
The problem is that the international community judges a disproportionate response by a body count. A democracy like Israel will always lose because its asymmetric enemy uses its citizens as human shields, hoping to demonize Israel and deter legitimate use of force.
A few years ago, I spoke to the international medical director for Syrian refugees living in Lebanon, who told me that in the 300 villages he had visited in southern Lebanon, there was not one where missiles were not placed in civilian homes. This man was no Zionist.
All of this came to the fore in February when the ICC ruled that it is under its jurisdiction to investigate Israel for war crimes for its past military activity in the Gaza Strip. Also, it wants to determine if settlements in Judea and Samaria also constitute war crimes against the Palestinians.
The ICC is also supposedly looking into the potential war crimes of Hamas. Yet, it seems morally perverse to equate Hamas, a designated terrorist entity that indiscriminately targets Israeli civilians while using human shields to induce Israeli retaliation, with a democratic nation that tries as much as any other military on earth to minimize enemy civilian causalities. I have witnessed this firsthand along the Gaza border.
The three-judge panel ruling in favor of investigating Israel in 2021 is a far cry from former chief prosecutor Luis Moreno-Ocampo, who said in 2006 that the ICC’s Rome Statute “permits belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur.”
The goal of Hamas and Hezbollah is to induce Israel to kill their civilians for political and diplomatic gain. Knowing international arbiters act only as bean counters plays right into their hands.
Whether from the north or south, Israel’s next war will again feature the use of human shields. This time it will be on a massive scale, with the inevitable international condemnation. Lt.-Col. Sarit Zehavi’s ALMA think tank, with the best expertise on Israel’s northern border, has documented many precision-guided missile factories purposely placed in civilian neighborhoods, next to schools, gas companies, and recreational facilities. It takes a herculean effort to fight UN officials and progressive media outlets who don’t hide their bias against Israel, choosing civilian body counts as their weapon to delegitimize Israel, knowing full well that Israel goes to extraordinary lengths to minimize civilians’ causalities.
Since the term “disproportionate” has been politicized and misused, it is appropriate to ask if an overwhelming response can be legal and justified if it acts as a deterrent to further attacks against your civilian population? What if it is the only effective deterrent against an asymmetric enemy that doesn’t play by international conflict rules, strategizing that it will not be on the receiving end of more missiles than it sends?
Can a case be made for a disproportionate response? Yes, it is called the Powell Doctrine and, in the long run, can decrease casualties by deterring the enemy. According to the late Charles Krauthammer’s interpretation of the doctrine: “The key to success in a military conflict is the use of overwhelming force. For decades the US had followed a policy of proportionality: restraint because of fear of escalation. If you respond proportionately, you allow the enemy to set the parameters… you grant him the initiative.”
In 2006’s Second Lebanon War, Israel’s alleged use of disproportionate force deterred Hezbollah for nearly 16 years. Yet just two year later, the international community ganged up on Israel after Operation Cast Lead in 2008, alleging excessive force constituting war crimes that culminated in the infamous but now discredited and retracted Goldstone Report. The current ICC investigation against Israel for war crimes in 2014 is a continuation of the diplomatic war to discredit Israel and undermine its right to exist like every other nation in the world.
So what can US President Joe Biden’s administration do? It is in America’s interest to protect Israel and itself, so it shouldn’t wait until missiles fly in the next inevitable war. Being proactive before the next war, articulating an American policy on proportionality, would protect both your ally and yourself.
Sooner or later, the US will also be on the docket of the ICC for war crimes. In any war, bad things happen, and yes, war crimes occur. The difference is that for America and Israel, they are far and few between, are legitimately investigated, and punishment is meted out when warranted. Just ask the soldiers in Israeli or American military prisons.
The international community’s goal is to redefine proportionality and tar Israel and America by isolated incidents for political gain. Don’t be misled. Both nations follow the rule of law that is guided by their democratic values.
Dr. Eric R. Mandel is the director of MEPIN, the Middle East Political Information Network. He regularly briefs members of the U.S. Senate, House and their foreign-policy advisers. He is a columnist for “The Jerusalem Post” and a contributor to i24TV, “The Hill,” JTA and “The Forward.”
In the winter of 2015, one of Israel’s most senior security cabinet officials asked me what advice should he give to Israeli Prime Minister Benjamin Netanyahu, in regard to Speaker of the House John Boehner’s invitation to speak before the U.S. Congress, laying out his case of why the 2015 Iran nuclear deal, also known as the Joint Comprehensive Plan of Action, or JCPOA, was a “bad deal” for both Israel and the United States. My answer surprised him. I told him not to accept the invitation, but to wait a few months until the Israeli election was concluded. I learned later that Netanyahu’s former Ambassador Michael Oren also told him to decline the invitation. This is in contrast to Israel’s ambassador at the time, Ron Dermer, who incensed the Obama administration as the one who “orchestrated the invitation” and wrote much of the speech.
Why is this history relevant for Netanyahu in 2020? There is an analogy to today. He is likely to create conditions in 2021 for a new election to avoid handing over power as promised to Israeli Deputy Prime Minister and Defense Minister Benny Gantz. The Biden administration would likely be negotiating with Iran, once again at a time when Netanyahu’s hold on the leadership of Israel is in doubt, as it was in 2014. This should be kept in mind by the Israeli prime minister before he has his first meeting with the Biden people, and strategizes how he should approach the new administration.
The 2014 visit to Congress was ill-timed, coming before an Israeli election later that spring. If Netanyahu won and formed a coalition, he could then have come later in the spring with a stronger mandate as the newly re-elected leader of Israel with a better chance not to throw kerosene into the fire of American politics. Any newly elected Israeli leader would naturally have asked to come to speak to U.S. leadership. If an audience with the president were denied, it would have been seen by much of the American public as petty politics on the part of the Obama administration. According to an NBC poll at the time, 68 percent of Americans “believed Iran was not going to abide by the nuclear agreement.”
I was and still am a strong critic of the JCPOA, believing that it undermines American and Israeli security interests, being both dangerous and unprecedented in giving a nation on our terror list the right to enrich uranium.
Yet knowing all of that, I still told my Israeli friend to try and dissuade Netanyahu from coming to Congress in 2014, even though I knew that Obama and his team had completely misled the Israelis, keeping them in the dark about the secret negotiations despite assurances that they would be kept in the loop, knowing the JCPOA was an existential issue for Israel’s survival.Top of Form
Bottom of Form
Although some blame the frosty relationship between Obama and Netanyahu for his administration’s actions, most think that U.S. Vice President Joe Biden’s relationship with the Israeli prime minister was always warmer. However, we don’t really know whether Biden will prove more sympathetic to Israeli interests than Obama was. We do know that he fully supported the JCPOA and was aware of the behind-the-scenes maneuvers to keep the Israelis in the dark.
The Obama administration policy from 2009 on was to create “daylight” between Israel and the United States, and to move closer to the Iranians. Keep in mind it was Biden who told the General Assembly of the Jewish Federations of North America, “Bibi, I don’t agree with a damn thing that you say, but I love ya.” That was 2014—the same year that the administration was secretly negotiating with Iran. So with act two of the JCPOA about to preview, it would behoove Israel and its supporters to review all of the history, mistakes and consequences related to the nuclear agreement.
In 2014, I spoke with the foreign-policy advisers of the chairman of the Senate Foreign Relations Committee, expressing my concern that they were being outmaneuvered by the Obama administration, which was cleverly creating a backdoor pathway for Senate approval of the agreement with only a minority of the Senate in favor of the deal. I emphasized that the JCPOA rose to the level of a treaty and should be submitted to the Senate as such, which would require 60 senators to vote in favor of its passage, as it was the most significant American foreign-policy commitment of the 21st century. In the end, the Obama administration brilliantly outmaneuvered the Republican leadership and was able to advance the agreement with something akin to an executive order, with only 42 senators in favor. The next year I was told by that same Senate office that when Europeans came to visit Washington, they were astonished that the JCPOA was not passed as a treaty.
If President-elect Biden re-enters the JCPOA or renegotiates a new agreement, will the 2021 Republican Senate try to weigh in? Will Netanyahu try a new approach, having learned the lessons of interfering in American politics? Biden promises to re-enter the deal in his first few months, so time will be of the essence.
The Obama administration took its revenge for the Netanyahu speech before Congress, when a year-and-a-half later, in December 2016, the United States orchestrated the passage of UNSC Resolution 2334, labeling any Israeli presence over the 1949 armistice line (1967 line or Green Line) an international crime and upending the UNSC Resolution 242, the keystone document that previously acknowledged that Israel was never supposed to return to the indefensible borders of 1967.
So how should Netanyahu approach dealing with Biden, knowing he wants to restart the JCPOA in a few months’ time and wants to fulfill his campaign promise to reopen the PLO mission in Washington, the U.S. Consulate in eastern Jerusalem for Palestinian use, and restore some funding to the Palestinians, even if they have to ignore the Taylor Force Law denying American funding to a Palestinian Authority that rewards and incentivizes terrorism?
The two leaders know each other very well. They also have clashed with each other for years over settlement building, most recently when mid-level Israeli officials announced settlement building during a Biden visit to Israel, embarrassing the vice president, who choose to publicly lash out at Netanyahu despite the prime minister’s apology.
Unlike the administration of U.S. President Donald Trump, which not only saw eye to eye with him on almost every issue—with tangible actions ranging from the U.S. embassy move from Tel Aviv to Jerusalem, to acknowledging that Israeli settlements do not break international law—Biden and his advisers want to promote a more balanced narrative and promote the aggrieved party of the Israeli-Palestinian conflict. They could, if challenged by the Israeli government, even choose to join the international community in boycotting Israeli goods from the West Bank (Judea and Samaria).
Netanyahu needs to prioritize his goals before engaging with the new administration. There is no doubt that the nuclear deal is the No. 1 issue on Israel’s plate, and there are rumors that the new administration, unlike the Obama one, will actually listen to Israeli suggestions for a new nuclear deal.
The Israeli prime minister’s highest priority is to emphasize to Biden that he shouldn’t rush to rejoin the flawed deal without significant changes to the agreement, as many of its provisions will sunset in less than five years. He must convince Biden that the United States has new leverage with the Trump sanctions in place, which have caused the Iranian economy to be under tremendous strain. The revolutionary regime’s first goal is to stay in power, and it worries about a rebellion from within. This is a great American advantage for negotiations if it is appreciated, as it could force the ayatollah and his minions back to the table.
“Patience, patience, patience with Iran” should be the bywords for the Biden administration, along with the willingness to leave negotiations if the regime’s leaders don’t meet the minimum threshold to truly end the Iranian nuclear program forever.
Netanyahu’s second goal is to continue the normalization process with the Arab world. Getting the Biden administration to prioritize this early on when there is still a window of opportunity for new nations to join will require him to give Biden something back in return. That inevitably will be something in regard to the Palestinians and Israeli settlement-building.
With the Israeli prime minister looking to renege on his deal to hand over power to rival Benny Gantz next year—and another potential contender, Naftali Bennett, gaining popularity from the right—he will be seriously challenged to advance Israel’s long-term goals while advancing his own political interests.
For his legacy, I would urge him to think of the long-term survival of the U.S.-Israel relationship in light of the challenges Biden will face from his own party regarding the Palestinians, Iran and Saudi Arabia, and prioritize the nuclear deal and normalization, offering some carrots to the Palestinians. The P.A. is dysfunctional, and the Palestinian people don’t trust their leadership, now in the 15th year of their four-year term, so even optimists in the Biden administration know that there is a limit to what can be achieved.
You don’t get something for nothing, and if Netanyahu can get 80 percent of Israel’s agenda in line with a President Biden, that is a huge win for America and Israel.
Dr. Eric R. Mandel is the director of MEPIN, the Middle East Political Information Network. He regularly briefs members of the U.S. Senate, House and their foreign-policy advisers. He is a columnist for “The Jerusalem Post” and a contributor to i24TV, “The Hill,” JTA and “The Forward.”
