Senior Justice Ministry official serving as a West Bank military court judge in reserve service, ordered 76-year-old US citizen Jamal Niser into prolonged detention without charge or trial, despite 'arbitrary detention' declaration by the UN.
Dr. Maor Even-Khen (aka Maor Even-Chen) is an attorney who most recently served as the deputy director of the Economic Crimes Division of the Israeli Justice Ministry, as well as a major in the reserve force of the Israeli Defense Forces, where he serves as a military court judge in the occupied West Bank. In his capacity as a military court judge, Maj. (Res.) Even-Khen has played a central role in the ongoing arbitrary detention of an elderly United States citizen, Mr. Jamal Afif Suleiman Niser, based on secret evidence, apparently for his involvement in local political affairs.
On August 31, 2022, Maj. Even-Khen approved an administrative detention order issued by the Israel Defense Forces against Niser despite the fact that the United Nations Working Group on Arbitrary Detention already had determined his imprisonment to be "arbitrary" several months earlier. As of April 15, 2023, Israel was still detaining Niser despite never charging him with a crime or indicating that it had any intention of doing so.
Niser's continued detention is 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."
The United States should impose sanctions against Even-Khen for his role in the arbitrary detention of an American citizen, a severe violation of human rights and potential war crime. The Secretary of State should impose a travel ban on Even-Khen under Section 212(a)(3)(C) of the Immigration and Nationality Act, Section 7031(c) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, and weigh potential financial sanctions under the Global Magnitsky Human Rights Accountability Act and Executive Order 13818. Furthermore, if the Secretary determines that Niser is being "wrongfully detained," as DAWN has encouraged, he should impose parallel sanctions against Even-Khen under the Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act.
The International Criminal Court should also include Maj. Even-Khen in its investigation into the Situation in Palestine for the commission of war crimes under the Rome Statute.
Personal and Professional Background
Maor Even-Khen was born ca. 1973 and grew up in Tiberias in Northern Israel. Following his compulsory military service in the IDF, Even-Khen studied law and business administration at Reichman University (previously known as the Interdisciplinary Center Herzliya) in Israel, graduating with a LL.B in Law and B.A in Business Administration in 1999. He went on to study under Prof. Mordechai Kremnitzer at the Faculty of Law at the Hebrew University of Jerusalem, where he completed a PhD in 2007, writing his thesis on insider trading.
For the vast majority of his career, Even-Khen has worked in the Economic Department of the State Prosecutor's Office in the Israeli Ministry of Justice, where he started as a legal intern, and most recently was the deputy director at least until August 2022. He has written two books, both considered authoritative in the field of financial crimes. He has overseen and worked on several high-profile corruption cases, including the successful prosecution of a government minister. A sitting Israeli Supreme Court justice and then-Israeli attorney general both spoke at the launch for Even-Khen's book on bribery.
Dr. Maor Even-Khen (center) is embraced by then-Attorney General Avichai Mandelblit (right) and head of the Israel Bar Association Effi Naveh (left). April 10, 2018. (Photo by Israeli Ministry of Justice, Twitter)
Even-Khen has taught courses in the law schools at Hebrew University, Tel Aviv University, and Reichman University. He apparently took part in the Netanyahu government's efforts to undermine President Obama's Iran nuclear deal, reportedly meeting with then-Senator Mark Kirk in Chicago in June 2016 to brief the senator "about the impact of the Iran deal on freeing up frozen Iran funds that may be funneled to Hezbollah and or other terrorist groups."
In 2022, the Israeli Judicial Selection Committee named Even-Khen as a candidate for district court judge in the Israeli civilian judicial system, although the committee did not ultimately confirm his appointment.
Serving as a military court judge, including in reserve service, is one way to increase one's chances of being appointed as a civilian judge in Israel, as documented by scholar Smadar Ben Natan. "It is not by chance that most of the military judges are appointed to the civilian justice system, judges in the Supreme Court, the district and the magistrate courts," a former military court judge and military advocate general told Ben Natan. "I was always very proud…I would appoint lawyers in their reserve service [as OPT military judges], who then 'surprisingly' were appointed as civilian judges," another former military judge told Ben Natan. Even-Khen may be seeking career advancement by volunteering to serve as a military court judge.
Even-Khen is married to Dr. Hilly Moodrick-Even Khen, an attorney, former state prosecutor, and academic who has published in international humanitarian and human rights law, and is currently the chair of the Center for the Research and Study of Genocide at Ariel University, located in an illegal settlement of the same name in the occupied West Bank. His father-in-law, Oded Mudrik, is a retired district court judge who went on to represent Israeli Prime Minister Benjamin Netanyahu in his ongoing corruption cases.
Upholding Arbitrary Detention
The Israeli army detained Jamal Niser at his home in Al Bireh, near Ramallah, at 4 a.m. on August 24, 2022, apparently for the same activities Israel detained him for the year earlier related to his political participation. Four days after Niser's detention, on August 28, 2022, an Israeli intelligence officer, Col. Nathaniel Kola, signed a four-month administrative detention order on behalf of Maj.-Gen. Yehuda Fuchs, the Israeli military commander of the occupied West Bank based on secret evidence never seen by Niser or his counsel. On August 31, 2022, the Israeli military brought Niser to the Ofer Military Court in the occupied West Bank for a hearing to review his administrative detention order.
In a closed-door session of the Ofer Military Court on August 31, 2022, Israeli military prosecutor Lt. Tal Igby asked Judge Maj. Even-Khen to approve Niser's administrative detention order. Niser's attorney asked the court to cancel or shorten the order, arguing that without being able to see the evidence he is unable to defend his client or refute the unknown allegations against him. Noting Niser's age and poor health, defense attorney Mohammad Hassan argued that his client could not pose a threat to anyone.
According to court documents reviewed by DAWN as well as testimony from family members, Niser addressed Maj. Even-Khen in English during the hearing, saying all he wants is to return to his children in the United States and doesn't want his wife to have to live alone. He added that he doesn't understand how he could pose a security threat at his age and with his poor health, noting that the Israeli soldiers who arrested him didn't even conduct any search of his house, which suggests they had no interest in collecting evidence against him.
Maj. Even-Khen then adjourned the closed-door hearing and convened an ex parte hearing with only the military prosecutor, during which, he later wrote in his decision, he reviewed the secret, classified information allegedly forming the basis of Niser's administrative detention. "I was convinced that it is not possible to reveal any details from the abovementioned intelligence information, in order to not harm the security of the area," Maj. Even-Khen wrote in his decision, revealing only that it claims Niser is a member of an organization criminalized by an Israeli military order. Maj. Even-Khen's decision suggests Niser is accused of financial misconduct, although an appeals court later wrote that his detention was related to promoting a list of candidates in planned Palestinian elections.
In approving the administrative detention order against Niser, Maj. Even-Khen wrote that administrative detention "is the only means for thwarting the danger posed by [Niser]." However, citing Niser's "advanced age," Maj. Even-Khen reduced the period of the detention order from four months to two months, after which time an Israeli military judge would have to review it again. A military appeals court later reversed that decision, reinstating the full four months, which an Israeli military intelligence officer subsequently renewed for an additional four months. Niser's current administrative detention order is set to expire on April 22, 2023 but can be renewed indefinitely under Israeli military laws in force in the Occupied Palestinian Territories.
In his decision and oral arguments, as reflected in court transcripts reviewed by DAWN, Maj. Even-Khen did not address the UN Working Group on Arbitrary Detention's determination that Niser's imprisonment constituted a violation of international law.
Arbitrary Detention: Legal Basis and Prohibition
Under the practice of administrative detention, authorized by Article 285 of Israel Defense Forces Military Order 1651, the Israeli army can imprison Palestinians without charge or trial indefinitely and on the basis of secret evidence, with orders that the regional military commander or an officer authorized by them can renew every six months. The grounds for administrative detention are only that the military commander has "reasonable grounds to believe that a certain person must be held in detention for reasons to do with regional security or public security." A military court judge must review and authorize the orders, which according to recent data, judges have done 99 percent of the time in 2022. 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.
In the case of the administrative detention hearing for Niser which Maj. Even-Khen oversaw, the Israeli military prosecution revealed the unsubstantiated allegations against Niser in the vaguest and often contradictory terms, ranging from participation in Palestinian elections to financial misconduct to membership in an illegal organization. The military prosecution and court did not give Mr. Niser or his attorneys access to any evidence, any information he would need to defend himself against the vague allegations, or any specifics about any crimes of which he is accused, according to closed-door court documents reviewed by DAWN. Maj. Even-Khen did not object to the absence and withholding of evidence, and he chose not to unseal any of the information.
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. The number of Israeli citizens held in administrative detention is in the low single digits.
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.
Rights violations
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 is related to his participation in elections, it would likely be arbitrary under Category II as well. Even-Khen heard Niser's hearing nine months later, which gave him sufficient opportunity to review the Working Group's published opinion.
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 has been in administrative detention, imprisoned without charge or trial, for nearly a cumulative 12 months. He has never been presented with evidence of wrongdoing, has not been charged with a crime, and has not been 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.
War Crimes
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
Visa Ban
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 Even-Khen from eligibility for entry to the United States based on his role in the wrongful detention of a US citizen, whether or not Niser is recognized by the Secretary of State as "wrongfully detained" under the definition provided by the Levinson Act. However, Even-Khen's involvement in the commission of a gross violation of human rights should make him 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 Even-Khen 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.
Contact Dr. Maor Even-Khen at maore@justice.gov.il and demand that he end his arbitrary detention of Palestinians, a clear violation of international human rights, humanitarian, and criminal laws. He can be reached by telephone at +972-569-3954 or by fax at +972-624-0470.
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.
