How Palestinian Reconciliation Could Put U.S. in Legal Bind

Trump's envoy welcomed unity talks between Fatah and Hamas, but the U.S. considers the latter a terrorist organization

Hamas leader Ismail Haniyeh during a rally in Gaza, 2014.
Adel Hana/AP

The White House welcomed negotiations in Cairo this week aimed at bringing rival Palestinian factions to create a unity government that would officially end a bitter decade-long split. But should the talks lead to reconciliation, the U.S. government could find itself in an awkward legal bind, since it is forbidden by law from working with Hamas as long as it remains designated a terror organization.

Experts say that according to the according to the Palestinian Anti-Terrorism Act of 2006, if the militant Islamic group as it exists today – equipped with its own fighting force and committed to armed struggle against Israel – were to play a substantial role in a unified Palestinian government, the United States would be criminally liable for assisting it.

“It would also affect development assistance to the Palestinians. It’s a huge complication,” said Howard Sumka, the former director for the West Bank and Gaza for the U.S. Agency for International Development.

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Congress passed the act after Hamas won the legislative elections in Gaza in 2006. By 2007, Fatah, the secular political faction founded by Yasser Arafat, was driven out of Gaza in a brief but brutal civil war. Hamas has maintained control of the Gaza Strip ever since, while Fatah has run the West Bank with President Mahmoud Abbas at the head of the Palestinian Authority.

Women demonstrate with posters of Palestinian President Mahmoud Abbas in Gaza City, October 3, 2017.
Khalil Hamra/AP

In order for Hamas to be part of a unity Palestinian government and not run afoul of U.S. regulations, they would have to meet the three conditions set by the Middle East Quartet, composed of the U.S., Russia, European Union and the United Nations. These are renouncing violence, recognizing Israel and accepting previous agreements between Palestinians and Israelis.

“That’s a big, big leap for Hamas as it would basically be surrendering on all the issues that define the core of Hamas ideology,” said Sumka.

Indeed, Hamas officials hold firm on refusing to give up their military wing, which has thousands of members in Gaza and according to the organization, serves as protection against Israel. Abbas, meanwhile, has been urging them to disarm in order for a unity government to go through. In an interview with Egyptian Television last week he called for “one state, one regime, one law and one weapon.” Officials believe the issue will be the most challenging one to negotiate.

“The United States welcomes efforts to create the conditions for the Palestinian Authority to fully assume its responsibilities in Gaza, as noted in the September 28 Quartet statement," said Jason Greenblatt, the White House Special Representative for International Negotiations, on Fatah leaders' visit to Gaza for a PA cabinet meeting last week – the first such visit in three years. "We will be watching these developments closely, while pressing forward with the Palestinian Authority, Israel, and international donors to try to improve the humanitarian situation in Gaza. The United States stresses that any Palestinian government must unambiguously and explicitly commit to nonviolence, recognition of the State of Israel, acceptance of previous agreements and obligations between the parties, and a commitment to peaceful negotiations,” Greenblatt said in the statement he released on Twitter.

Hamas is feeling the pressure in the Gaza Strip, a 141-square-mile area with two million people where a humanitarian crisis lurches along between electricity blackouts, water shortages and housing and infrastructure that have never fully been restored in the wake of three wars with Israel in the course of six years. An ongoing blockade by Israel along one border and Egypt along the other has hobbled Gazans’ ability to rebuild. And Hamas, founded as a resistance movement, has struggled with the transition to daily governing, in particular under such difficult conditions. Last month, Hamas announced that it was dissolving its administrative council in Gaza, essentially handing Fatah the reins to come in and take over the day-to-day governing of the Strip. This is seen as a concession to Fatah, and a way for the struggling Hamas to chart a new role for itself within the Palestinian Authority.

But after a series of false starts in past reconciliation efforts, all involved parties know the road to unity remains elusive.

Meanwhile in Gaza, frustrations continue to mount.

“People are angry at everyone, at Hamas, at Israel, it feels like no one is helping them,” said Akram Adallah, a political commentator for the Palestinian newspaper Al-Ayyam, who lives in Gaza. “I don’t ever remember a time as difficult as this.”