Palestinian Authority-Hamas Unity Government


Office of Senator Mark Kirk (R-IL)

Key Items to Watch in PA Unity Government

April 29, 2011


This week, multiple news agencies reported that Fatah and Hamas reached an agreement to form a Palestinian Authority unity government.  However, critical details that could impact future U.S. assistance to the Palestinian Authority remain unknown.  This memorandum summarizes the potential legal issues involved and provides a series of questions for the Administration and the Congress to ask when details of the unity government emerge.

Restrictions on U.S. Assistance to a Unity Government

For the situation at hand, the relevant statute remains the Lowey-Kirk language contained in Section 1107 of the Supplemental Appropriations Act, 2009 (Public Law 111-32).  That bill was accompanied by committee report language providing further guidance to the executive branch. 


Under this provision, 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’)


The accompanying report language further defined “such equivalent” as “other officials of such equivalent rank and stature” and further defined “publicly accepted” as “in writing by such government and its ministers.”


Section 1107 was carried forward in Section 7040 of the Consolidated Appropriations Act, 2010 (Public Law 111-117) – and this section carried forward by Section 1101(a)(6) of Division B of the recently enacted Department of Defense and Full-Year Continuing Appropriations Act, 2011 (Public Law 112-10).


Will Any PA Personnel Be Located in Gaza?


Regardless of the technical details of the unity government, the governing statute cited above strictly prohibits U.S. funding for the salaries of Palestinian Authority personnel located in Gaza.


Will Hamas Effectively Control Any Palestinian Entities?


Assistance to Hamas or any entity effectively controlled by Hamas is strictly prohibited under current law.  Therefore, any PA agency, institution or ministry effectively controlled by Hamas would be ineligible to receive U.S. funding.


Have Ministers of the New Government Accepted Key Principles?


The governing statute clearly states that each minister or such equivalent must publicly acknowledge the Jewish state of Israel’s right to exist and commit him or herself to all previous agreements and understandings with the United States, Israel and the international community, including the Roadmap to Peace (which includes the renunciation of violence).


Did They Accept the Key Principles in Writing?


A verbal statement, whether issued in public or private, is not enough to satisfy the governing statute.  The Committee clearly defined “publicly” as “in writing.”  We must be able to see signed copies of each minister or equivalent’s acceptance of key principles.


What about Officials of Equivalent Stature or Rank to a Minister?


Just because someone is not called “minister,” doesn’t mean they are above the law.  The Committee clearly defined “equivalent” as an official with an equivalent rank or stature to a minister.  If any such positions are created by the unity government agreement, those individuals must accept the key principles in writing as well.


Will Hamas Security Forces Work in Coordination with PA Security Forces?


According to news reports, the final Fatah-Hamas agreement may include “security arrangements” to facilitate Fatah-Hamas border and other security cooperation.  On November 24, 2010, Secretary Clinton re-designated Hamas as a foreign terrorist organization (FTO) in accordance with section 219 of the Immigration and Nationality Act (INA), as amended.   Therefore, should PA security forces enter into cooperation with Hamas security forces, U.S. assistance for Palestinian security may be prohibited.


Has Hamas Joined the Palestine Liberation Organization?


According to news reports, the final Fatah-Hamas agreement may include a “restructuring” of the Palestine Liberation Organization (PLO) to permit Hamas to join.  On November 24, 2010, Secretary Clinton re-designated Hamas as a foreign terrorist organization (FTO) in accordance with section 219 of the Immigration and Nationality Act (INA), as amended.  Therefore, should Hamas join the PLO, the Secretary may be forced to designate the PLO as an FTO.


Under the law, such designation would make it unlawful for a person in the United States or subject to the jurisdiction of the United States to knowingly provide "material support or resources" to the PLO (i.e. any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who maybe or include oneself), and transportation, except medicine or religious materials).


Under the law, PLO representatives and members, if they are aliens, would be inadmissible to and, in certain circumstances, removable from the United States.  Furthermore, any U.S. financial institution that becomes aware that it has possession of or control over funds in which the PLO or its agent

Rep. Gary Ackerman (D-NY)
April 28, 2011
The purported deal, which does not require Hamas to accept Israel’s right to exist, or the binding nature of prior Palestinia commitments, or even to require Hamas to temporarily
forgo violence against Israel (as if it were some kind barbaric of addiction, or
compulsion), is a recipe for failure, mixed with violence, leading to disaster. It is a
ghastly mistake that I fear will be paid for in the lives of innocent Israelis.

Rather than seizing the dynamic of this amazing Arab Spring to simply push for national elections and constitutional reform, the leadership of the Palestinian Authority has once again naively decided to test
the trustworthiness of a bloody-handed bunch of terrorist
want-to-be theocrats. While this step may be popular among Palestinians, many of whom wish to preserve the fantasy
that they can have peace and so-called
‘resistance’ (also
known in English as terrorism), the reality is that
they can’t.

As in prior cases, the United States will be compelled by both law and decency to
withhold any assistance that could fall into the hands or control or even partial control of anyone reporting to, or belonging to a terrorist entity, as is Hamas.

And in the current political climate, even assistance that would otherwise have gone to parts of the
Palestinian Authority untainted by terrorism may no longer be salvageable.
For months, President Abbas has refused partnership with Israeli Prime Minister Netanyahu in pursuing peace negotiations. It now appears that he is writing off
partnership with the United States in helping to govern and develop Palestinian society. It’s certainly historic leadership. Just not the good kind.

Rep. Kay Granger (R-TX) and Nita Lowey (D-NY)
April 28, 2011
We write to express serious concerns about your
intentions to seek recognition of an
independent Palestinian state at the United Nations and the pursuit of a unity government with Hamas, which has not recognized the Jewish state of Israel’s right to exist. We urge
you to end these actions and return to direct negotiations with Israel, which will provide the only path to a viable and
durable two-state agreement.
The 1993 Oslo Accords were explicitly understood to be part of an ongoing, negotiated peace process. In fact, a letter from the Palestinian leadership stated that the PLO
“commits itself to a peaceful resolution of the conflict between the two sides and declares that all outstanding issues relating to permanent status will be resolved through
negotiations.” That understanding enabled Israel to turn over governance of significant
aspects of Palestinian society to an elected Palestinian government.
Since that time, the U.S. Congress has been a strong partner in your government’s efforts
to build the institutions that will someday govern an independent Palestinian state. The U.S. government has provided billions of dollars as well as technical assistance and training to increase security, promote economic growth and fiscal independence, strengthen public institutions, and meet humanitarian needs.
U.S. aid is predicated on the premise that your government has demonstrated a firm
commitment to pursuing efforts to establish a just, lasting, and comprehensive peace with

As you know, U.S. law also requires a commitment to countering terrorism,
confiscating weapons, and dismantling terrorist infrastructure. In addition, it prohibits aid to Hamas, Hamas-controlled areas, and any power-sharing government that includes
Hamas, until Hamas publicly acknowledges the Jewish state of Israel’s right to exist and commits to a two-state solution Your current courses of action undermine the purposes and threaten the provision of United States assistance and support.

We have been strong supporters of aid to the Palestinian Authority in the
hopes of ensuring prosperity, stability, and peace for the Palestinian people and all people in the
region. However, our ability to support current and future aid would be severely
threatened if you abandon direct negotiations with Israel and continue with your current efforts. (Letter to Palestinian President Mahmoud Abbas)

has an interest must retain possession of or control over the funds and report the funds to the Office of Foreign Assets Control of the U.S. Department of the Treasury.



Sen. Marco Rubio (R-FL)
April 28, 2011
The announced agreement, if it becomes reality, would be a major setback for peaceefforts in the Middle East and is not in the best interest of the Palestinian people. Participation in a Palestinian government of any organization, such as Hamas, that fails to renounce their calls for the destruction of Israel and the use of violence should prompt the withdrawal of our assistance. No American taxpayer money should fund a government that includes a terrorist organization dedicated to the murder of innocent civilians. 
Cut Funding to PA-Terror Government
Congressman Allen West
April 29, 2011:

“Yesterday’s announcement by the Palestinian Authority of the formation of a unity government comprised of Fatah and Hamas is deeply troubling. This united front only adds to the overall unrest and instability in the Middle East and is a first step in the unilateral declaration of a Palestinian state.


Any government in which Hamas – a terrorist organization whose charter calls for the destruction of Israel – plays a role, should not receive one dollar from the United States.

Read complete statement.

Rep. Debbie Wasserman Schultz (D-FL)
April 29, 2011
I am watching with caution and concern the recent announcement by Fatah and Hamas that they plan to form a Palestinian unity government. The United States would embrace such an arrangement for the purpose of promoting peace, if and only if Hamas renounces its terrorist charter and abides by the Quartet Principles. Hamas is a terror organization, eschewed by the United States government, and this deal puts United States support for
the Palestinian Authority at risk unless Hamas renounces violence, abides by past peace agreements, and recognizes Israel's right to exist. The Palestinian people deserve a unified, peace-seeking government -- not one that flies in the face of the necessary and
important steps all parties must take toward peace.

Rep. Ted Deutch (D-FL), Dennis Cardoza (D-CA), Eliot Engel (D-NY), Jack Kingston (R-GA), Allyson Schwartz (D-PA), John Barrow (D-GA), Tim Murphy (RPA),Ben Chandler (D-KY), and Larry Kissell (D-NC)
April 28, 2011
“Yesterday, we learned of a purported agreement to form a unity government between the
Palestinian Authority and Hamas, a terrorist organization that inten-tionally and willfully targets Israeli civilians.

This is a time for clarity. The Palestinian Authority has chosen an alliance with violence and extremism over the democratic values that Israel represents. The United States
should not aid an entity whose mem-bers seek the destruction of the State of Israel and continue to fire rockets and mortars at innocent Israeli children. If the Palestinian
Authority follows through on this decision, American law dictates that US assistance to the Palestinian Authority will end. "In our meeting with the Prime Minister, we re-affirmed our commitment to ensuring the safety and security of Israel and to supporting Israel's efforts to achieve real, lasting, and secure peace with the Palestinian people.

Rep. Ileana Ros-Lehtinen (R-FL)
April 28, 2011
“The reported agreement between Fatah and Hamas means that a Foreign Terrorist Organization which has called for the destruction of Israel will be part of the Palestinian Authority government. U.S. taxpayer funds should not and must not be used to support those who threaten U.S. security, our interests, and our vital ally, Israel.

“According to existing U.S. law, such a hybrid government cannot be a recipient of U.S. taxpayer funds because the law stipulates that the PA government must recognize the
Jewish state of Israel’s right toexist, among other things. Therefore, in order to
implement existing law, the U.S. must end assistance to the Palestinian Authority.
“By entering into this partnership with Hamas, Abu Mazen’s Palestinian leadership has shown again that it is not a partner for peace. If reports are correct, the PA would then be
standing with those who want only death and destruction for Israel.
“The Israeli and Palestinian people are eager for peace, but support for this type of PA government is not the way to get there.”









Over half the Democratic caucus signed a letter urging President Obama to cut off assistance to the Palestinian Authority in the wake of its reconciliation with Hamas unless Hamas swears of terrorism and recognizes Israel.

Here are the 27 signatories, including Joe Lieberman, who is independent, but who caucuses with the Democrats.

If one or both of your senators are Democrats and have not yet signed, please contact them to do so immediately. Click here for information on how to contact your senator(s).

Senator Robert Menendez (N.J.)

Senator Robert P. Casey, Jr. (Pa.)

Senator Daniel Inouye (Hawaii)

Senator Carl Levin (Mich.)

Senator Max Baucus (Mont.)

Senator Joseph Lieberman (Conn.)

Senator Kent Conrad (N.D.)

Senator Frank Lautenberg (N.J.)

Senator Charles Schumer (N.Y.)

Senator Barbara Boxer (Calif.)

Senator Daniel Akaka (Hawaii)

Senator Barbara Mikulski (Md.)

Senator Ron Wyden (Ore.)

Senator Bill Nelson (Fla.)

Senator Debbie Stabenow (Mich.)

Senator Ben Nelson (Fla.)

Senator Mark Pryor (Ark.)

Senator Benjamin Cardin (Md.)

Senator Sherrod Brown (Ohio)

Senator Amy Klobuchar (Minn.)

Senator Jon Tester (Mont.)

Senator Kirsten Gillibrand (N.Y.)

Senator Al Franken (Minn.)

Senator Joe Manchin (W.Va.)

Senator Christopher Coons (Del.)

Senator Richard Blumenthal (Conn.)

Senator Claire McCaskill (Mo.)

President Barack Obama
The White House
1600 Pennsylvania Avenue, N.W.
Washington, DC 20500

Dear Mr.  President:

The decision of Palestinian Authority (PA) President Mahmoud Abbas to form a unity government with Hamas – a designated terrorist group – threatens to derail the Middle East peace effort for the foreseeable future and to undermine the Palestinian Authority’s relations with the United States.

Hamas rejects peaceful efforts to end the Israeli-Palestinian conflict and continues to call for the destruction of the State of Israel. Soon after this agreement was signed, senior Hamas official Mahmoud Zahar declared that "our plan does not involve negotiations with Israel or recognizing it." Hamas and other Iranian-backed terrorist groups in Gaza have also stepped up their smuggling of Iranian arms and increased their mortar and rocket attacks against Israeli civilians, firing more than 130 during the past month alone and nearly 300 this year.  Hamas’ response to the killing of Osama Bin Laden, condemning “the assassination and killing of an Arab holy warrior” is emblematic of Hamas’ ideology and underscores Hamas’ continued support for terrorism.

The United States should stand by its refusal to work with any Palestinian government that includes Hamas.  We welcome statements from the Administration recognizing that Hamas is a terrorist organization and insisting that it accept the Quartet conditions (of recognizing Israel’s right to exist, rejecting violence, and endorsing previous Israeli-Palestinian peace agreements).  We strongly support Secretary Clinton’s 2009 Statement that: “we will not deal with nor in any way fund a Palestinian government that include Hamas until Hamas has renounced violence, recognized Israel and agreed to follow the previous obligations of the Palestinian Authority.”

It is imperative for you to make clear to President Abbas that Palestinian Authority participation in a unity government with an unreformed Hamas will jeopardize its relationship with the United States, including its receipt of U.S. aid.  As you are aware, U.S. law prohibits aid from being provided to a Palestinian government that includes Hamas, unless the government and all its members have publically committed to the Quartet principles.  We urge you to conduct a review of the current situation and suspend aid should Hamas refuse to comply with Quartet conditions.

Ultimately, the legitimacy of any peace process must always be weighed against the assurances Israel needs for its security and the security of the region.  Hamas’ participation in the Palestinian government eliminates the trust and commitment to peace that must exist between the parties to move forward and therefore, as Israeli Prime Minister Benjamin Netanyahu has stated, the choice is between “peace with Israel or peace with Hamas” because “there is no possibility for peace with both.”

As fellow Democrats, we thank you for your continued commitment to and investment in Israel’s security.   We urge you to make clear to President Abbas and the international community the United States’ opposition to a Fatah-Hamas unity government that does not fully accept the Quartet principles.  Such a government will prove fatal to the peace effort, as well as to efforts to establish a Palestinian state, and will severely harm relations with the United States.  The Palestinian Authority needs to get back to the negotiating table rather than pursue futile and harmful efforts to join with Hamas or seek recognition of Palestinian statehood at the UN. 



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