Rosen-Grimberg Signed Political Detention Order Against 74-year-old Palestinian-American Jamal Niser, Detained for 12 Months Without Charge or Trial
Brigadier General Naama Rosen-Grimberg, Military Secretary to Israeli President Isaac Herzog, ordered the wrongful imprisonment of Jamal Niser, a 74-year-old American citizen, which comprises a grave violation of his human rights, when she was an intelligence officer in 2021.
On June 13, 2021, Rosen-Grimberg, then a colonel and the IDF Central Command's Intelligence Officer, signed a four-month administrative detention order against Niser, whom Israeli soldiers arrested from his Ramallah-area home in a pre-dawn raid three days prior. He would spend the next four months in an Israeli prison without charge or trial.
According to classified court documents reviewed by DAWN, Israeli authorities stated that Mr. Niser's detention was directly related to his support of and participation in Palestinian elections. According to interviews DAWN conducted with two of Mr. Niser's family members, he was indeed involved in promoting a slate of independent candidates in Palestinian legislative elections in 2021. Those elections never took place.
Niser's detention was a violation of international human rights laws, including Article 9(1) the International Covenant on Civil and Political Rights, to which Israel is a state party, prohibiting arbitrary arrest or detention. It could amount to a war crime under Article 8(2)(a)(vi) of the Rome Statute, which prohibits "[w]ilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial."
Israel's Use of Administrative Detention
The Israeli military has occupied the West Bank, part of the occupied Palestinian territory since June 1967, and rules over it using military law. Article 285 of IDF Military Order 1651 authorizes the military commander of the West Bank to put anyone in administrative detention if they determine that person poses a danger to security of the occupied territory.
In practice, Israel's Shin Bet intelligence service sends a form requesting an administrative detention order to the IDF Central Command's senior intelligence officer, giving a short summary of intelligence information. The intelligence officer signs an administrative detention order of up to six months, renewable indefinitely. Generally speaking, those orders are issued after the detainee has already been in custody for several days or weeks.
An administrative detainee must be brought before a military court within eight days for judicial review and approval. According to data the IDF provided to Haaretz, military judges approved 99 percent of administrative detention orders in 2022. As of July 1, 2023, Israel was holding 1,132 Palesitnians in administrative detention without charge or trial. The number of Jewish Israeli citizens held in administrative detention is in the low single digits.
The military prosecutor and judge are not required to tell the detainee or their attorney of any specific allegations against them or give them access to any evidence or intelligence reports that they might be able to use to to refute or to launch even the most basic legal defense. In most cases, administrative detention is used as a "preventative" measure which makes defending oneself nearly impossible.
Administrative detention is permitted under the Fourth Geneva Convention (articles 42, 78) only as an exceptional measure when an individual is deemed to present a real security threat in the present or future, and even then only when "absolutely necessary" and criminal charges are not possible. The official ICRC commentary on the IV Geneva convention clarifies that "[i]n the occupied territories the internment of protected persons should be even more exceptional than it is inside the territory of the parties to the conflict." The political nature of Israel's use of administrative detention suggests it uses it beyond absolute necessity, as admitted by Israeli officials in the past and evidenced by the fact that the number of Palestinians in administrative detention reached a 20-year high in 2022 and continues to climb in 2023.
In addition, as numerous human rights organizations and UN bodies have concluded, it is no longer appropriate for Israel to rely on the provisions of the Geneva Conventions to justify its administrative detention policy. The Geneva Conventions govern what are meant to be temporary military occupations but the Israeli occupation has become a permanent situation, and its exceptional emergency provisions are no longer appropriate for the situation in the OPT. International human rights law strictly prohibits indefinite administrative detention and arbitrary detention without charge based on secret evidence. The denial of due process and a fair trial is also a war crime in the International Criminal Court's Rome Statute.
Mr. Niser, a U.S. citizen and resident of 40 years, was 74-years-old when the Israeli military arbitrarily imprisoned him for the first time. Several months later, the United Nations Working Group on Arbitrary Detention determined that Mr. Niser's detention was "arbitrary," citing among other reasons that Israel denied him due process or any way to defend himself due to the exclusive use of secret evidence to justify his imprisonment.
A wrongful, political, and arbitrary detention
Brig. Gen. Rosen-Grimberg's signature on Mr. Niser's administrative detention order sealed his fate, as 99% of administrative detention orders signed by an intelligence officer are approved by military court judges. Neither Niser nor his attorney were allowed to view the alleged evidence against him, including a summary of his interrogation—an absurdity considering it is ostensibly a document outlining what Jamal himself said.
This would be the first of a total of seven administrative detention sentences that Mr. Niser would serve over the next two years, although Brig. Gen. Rosen-Grimberg signed only the first.
In a July 28, 2021 appeal of the administrative detention order Brig.-Gen. Rosen Grimberg issued against Niser, Military Appellate Judge Col. (Res.) Eran Laufman rejected a request to release him, writing. Col. Laufman wrote in his judgment, drawing on the classified material presented to the court in camera, that the administrative detention order was indeed intended to stop Niser from further involvement in Palestinian Authority elections.
Following pressure from the United States, Israeli authorities released Niser from his most recent administrative detention on April 20, 2023, though they continue to prevent him from returning to the United States or even traveling to Jerusalem to receive critical medical treatment, effectively keeping him under a form of domestic detention.
The UN Working Group on Arbitrary Detention has established five categories where a deprivation of liberty is arbitrary, based on international human rights law. Category I concludes that a detention is arbitrary when, "it is clearly impossible to invoke any legal basis justifying the deprivation of liberty," while Category II concludes that a detention is arbitrary when the deprivation of liberty results from the exercises of the rights and freedoms guaranteed by numerous articles in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, to which Israel is a state party. Category III concludes that a detention is arbitrary when "the total or partial non-observance of the international norms relating to the right to a fair trial, spelled out in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character." Category V concludes a detention is arbitrary when the deprivation of liberty constitutes a violation of international law on the grounds of discrimination.
In its November 2021 opinion, the UN Working Group concluded that Jamal Niser's detention was arbitrary based on Categories I, III, and V. If, as suggested, Jamal's detention was related to his participation in elections, it would likely be arbitrary under Category II as well.
Article 9(1) of the International Covenant on Civil and Political Rights states:
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
The Right to Be Informed of the Reason for Arrest
Article 9(2) of the International Covenant on Civil and Political Rights states:
Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
The Right to a Trial Within a Reasonable Time or to Release
Jamal Niser was in administrative detention, imprisoned without charge or trial, for nearly a cumulative 12 months. He was never been presented with evidence of wrongdoing, was not been charged with a crime, and was not given an opportunity to defend himself against or refute the allegations against him. By denying Mr. Niser's right to trial, Israeli authorities have violated international law.
Article 9(3) of the International Covenant on Civil and Political Rights states:
Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.
Likewise, the Principles 37 and 38 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provide similar legal safeguards.
Arbitrary detention could also be considered a war crime under the Rome Statute of the International Criminal Court. Article 8(1)(vi) of the Rome Statute defines as a war crime "Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial." The ICRC's glossary of international humanitarian law defines protected persons as "civilian persons who because of a conflict or occupation are in the power of a Party whose nationality they do not possess," a category universally recognized as applying to Palestinians living in the occupied Palestinian territory.
Applicable Administrative and Criminal Sanctions
Section 7031(c) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, on the Inadmissibility of Foreign Officials and Family Members Involved in Kleptocracy or Human Rights Violations, lists as the first criteria for ineligibility:
"(A) Officials of foreign governments and their immediate family members about whom the Secretary of State has credible information have been involved, directly or indirectly, in significant corruption, including corruption related to the extraction of natural resources, or a gross violation of human rights, including the wrongful detention of locally employed staff of a United States diplomatic mission or a United States citizen or national, shall be ineligible for entry into the United States."
The United States should exclude Rosen-Grimberg from eligibility for entry to the United States based on her role in the wrongful detention of a US citizen, whether or not Niser is recognized by the Secretary of State as having been "wrongfully detained" under the definition provided by the Levinson Act. However, Rosen-Grimberg's involvement in the commission of a gross violation of human rights should make her ineligible for a U.S. visa independent of such a determination. Section 116 of the Foreign Assistance Act includes in its definition of gross violations of internationally recognized human rights "prolonged detention without charges."
Section 212(a)(3)(C)(i) of the Immigration and Nationality Act also provides tools to deny Rosen-Grimberg entry to the United States. The statute provides that "[a]n alien whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is inadmissible." Admitting a foreign official responsible for the arbitrary and wrongful detention of an elderly US citizen would incontrovertibly be detrimental to the foreign policy of the United States by projecting to other officials around the world that there are no consequences for such illegal actions.
Targeted financial sanctions
Section 1(a)(ii)(A) of the Executive Order 13818—Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption — states that the United States may block the property and interests in property belonging to any foreign person determined by the Secretary of the Treasury "to be responsible for or complicit in, or to have directly or indirectly engaged in, serious human rights abuse." The "serious human rights abuse" standard, although undefined, is believed to be more permissive than the definition of Grave Violations of Human Rights referenced in Section 7031(c) and the Global Magnitsky Act.
About DAWN's culprit gallery:
Tyrants need enablers who will implement their oppressive practices, even if it means abusing their fellow citizens. These agents often mask their complicity in the guise of professionals exercising their duties in offices, courtrooms, police stations, and interrogation rooms.
DAWN seeks to disclose the identity of the state agents who enable repression and to make them recognizable at home and abroad. These individuals, whom DAWN calls "culprits," bear administrative, civil, moral, legal, or political responsibility for human rights abuses or international humanitarian law violations.