Justice Department Can and Should Prosecute Palestinian War Criminals

American tourists killed in Israel by Palestinian terrorists include (clockwise from top left) Daniel Wultz (2006), Kristine Luken (2010), Ezra Schwartz (2015), and Taylor Force (2016).

The International Criminal Court was supposed to pursue rogue regimes unwilling to hold war criminals accountable. Now that the ICC is instead investigating the U.S. and Israel, the Trump administration has laudably taken measures to penalize those who would politicize the court. President Trump can go further, however, by targeting a party fueling the current controversy: the Palestinian Authority.

After years of refusing to negotiate in good faith, the Palestinians have adopted a strategy of extracting concessions from Israel through pressure in the international arena. In this regard, the Palestinian Authority joined the ICC and requested an examination of its conflict with Israel. The court has proven to be an all-too-sympathetic forum.

Against the objections of numerous member states, the ICC’s Office of the Prosecutor has engaged in legal acrobatics to haul Israel before a court it never joined. The ICC has even coordinated with Palestinian terror-linked groups in collecting “evidence” against the Jewish state.

Simply put, the ICC cannot be relied upon to investigate the Palestinian Authority and the terrorist organizations it enables adequately. The United States, however, has both the justification and jurisdiction to bridge this gap.

Given the frequency with which Americans visit and reside in Israel, it is not surprising that many U.S. citizens have fallen victim to Palestinian terrorism. In the past, attempts to assert jurisdiction over these crimes (most notably, the 1985 Achille Lauro cruise ship hijacking and the murder of Leon Klinghoffer) dragged on for years before evaporating.

With strong backing from the Trump administration, however, a Republican-controlled Congress took the first steps in renewing American efforts against Palestinian terror. The 2018 Taylor Force Act, named after an American military veteran killed while visiting Tel Aviv, put the spotlight on a unique feature of Palestinian terrorism: pay-for-slay.

Today, the Palestinian Authority is the only regime in the world to reward anyone financially who is wounded, killed, or incarcerated as a result of attacking civilians based on their perceived ethnicity. To put this in perspective, as bad as the regimes in Iran, North Korea, and Venezuela may be, none have a pay-for-slay policy automatically open to all applicants. Only the Palestinians can claim that.

Apologists of this awful, murderous policy argue that because payment is made to any Palestinian “martyr,” including Palestinian civilians killed unintentionally, pay-for-slay does not reward terrorism. This is nonsense. The policy offers a lifetime salary to the families of murderers, creating clear and unmistakable incentives to kill civilians.

The Taylor Force Act cut funding to the Palestinians because of pay-for-slay. But the U.S. can go further because criminal jurisdiction is found under 18 U.S.C. § 2339C, a law dealing with terror financing. Even though pay-for-slay funds are distributed after the fact, the Palestinian Authority effectively places funds in escrow as guaranteed payment for terrorist attacks. This satisfies the statute no less than if suitcases full of cash were provided up-front to support terrorist operations.

In addition to federal statutes, international law (most notably the norms found in the Genocide Convention) provides jurisdiction. Article Two applies when members of an ethnic group are killed with the underlying intent of eliminating that group. Article Three further notes that instances of incitement and complicity for related attacks are actionable offenses.

The Palestinian leadership has not abandoned its aims, even if futile, of eliminating Jews from Israel and establishing a Palestinian state “from the river to the sea.” In the words of Palestinian President Mahmoud Abbas, “Every house you have built on our land — there is no escaping that they will disappear.” He, of course, did not mean to imply that Israel’s Jews will relocate to tents and caves but that they will be dead or gone.

Key religious figures, such as Jerusalem Mufti Muhammad Hussein, also have approvingly cited scripture that speaks of killing Jews. Such incitement is routinely broadcast on state-sponsored television and social media, and those who act on it are guaranteed a salary under the terms of pay-for-slay.

At the very least, the Palestinian Authority is legally complicit in crimes against humanity.

In his 2004 speech to the Republican National Convention, Rudy Giuliani cited the murder of Klinghoffer, noting that terrorism had become “a ticket to the international bargaining table.” That ticket, in the form of pay-for-slay, is still being used by the Palestinian Authority to this day, albeit supplemented with its machinations at the ICC. Trump should ensure that these tickets are not honored.