Israel Occupation Forces Imprisoning 76-year-old Jamal Niser Without Charge or Trial for 7 Months on Politically Motivated Basis
(Washington, D.C., April 4, 2023) Israel should immediately release from so-called "administrative detention" 76-year-old U.S. citizen Jamal Niser, whom it has imprisoned without charge or trial for seven months, said Democracy for the Arab World Now (DAWN) Tuesday.
Israel detained Niser on August 24, 2022 on apparently politically motivated bases, as detailed by DAWN's investigation into Niser's persecution by Israeli authorities.
Unless he is released imminently, the U.S. State Department should declare Niser to be wrongfully detained pursuant to the Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act on the grounds that his detention is arbitrary, among other reasons. The United Nations Working Group on Arbitrary Detention declared Niser unjustly detained in November 2021, when Israel detained him for the first time. A recent report from U.S. consular officials who visited Niser in prison also said he is in poor health and requires surgery.
"It is difficult to believe that although a foreign country is imprisoning an elderly U.S. citizen based on secret evidence and denying him the most basic due process rights, our government hasn't taken even minimum steps to secure his release, starting by declaring him wrongfully detained," said Sarah Leah Whitson, Executive Director of DAWN. "Israel has never accused Niser of a crime, but the facts indicate that Israel is punishing him because he has been politically active in the West Bank, where Palestinians have none of the rights to free association or expression afforded to Israeli settlers."
As detailed in DAWN's investigation, when Israeli military authorities first detained Niser in 2021, classified court documents clearly state that they detained him because of his involvement in Palestinian elections scheduled for that year, which were ultimately canceled. Upon his release, Niser attempted to return to the United States but Israeli authorities refused to let him leave the occupied West Bank despite the intervention of his congressman, Tim Ryan. When they detained him again in August 2022, Israeli authorities claimed his detention was in relation to a financial matter without producing any evidence of wrongdoing.
DAWN reviewed court documents and transcripts from all of Niser's closed-door hearings in Israeli military courts, reviewed the UN determination of his arbitrary detention, interviewed several members of his family, and received information and data from Israeli and Palestinian human rights organizations working on Niser's case.
The U.S. State Department's 2022 Human Rights Report notes that Israeli security forces "employed administrative detention excessively." Israel is currently (April 2023) holding over 1,000 Palestinians in administrative detention, a 20-year high, according to data Israeli authorities provided to Israeli human rights group HaMoked. In 2022, Israeli military authorities issued 2,076 such orders for imprisonment without trial. A military judge must review and authorize administrative detention orders, but generally the authorities do not tell the detainee or their attorney of any specific allegations against them nor do they give them access to any evidence, without which it is impossible to launch even the most basic legal defense. According to data the Israeli military provided to Israeli newspaper Haaretz, military judges approved 99 percent of administrative detention orders in 2022.
"The arbitrary detention of American citizens is something we've come to expect from autocratic regimes like Saudi Arabia and Russia, but certainly not countries with which the United States claims to have 'shared democratic values," said Michael Schaeffer Omer-Man, Director of Research for Israel-Palestine at DAWN. "At the very least, the Biden Administration should work to free Jamal Naser with the same diplomatic might and influence as it wields on behalf of high-profile Americans, like Brittney Griner and Evan Gershkovich."
At least 10 Israeli military legal officers have played direct roles in the arbitrary detention of Jamal Niser. Among them is Maj. (Res) Maor Even Khen, the reserve military court judge who authorized Niser's August 28, 2022 administrative detention order. In civilian life, Even-Khen is the deputy head of the Israeli Justice Ministry's Financial Crimes Unit. Brig.-Gen. Naama Rosen-Grimberg, currently the military attache to Israel's president, was the IDF intelligence officer who signed Niser's first administrative detention order in 2021. Information on the other responsible parties can be found in the full investigation. The U.S. and other responsible governments should impose sanctions on these individuals for their role in human rights abuses.
Jamal Niser's Detention
Niser moved from Palestine to Ohio in 1967, where he started a family and owned a number of grocery stores and gas stations in addition to real estate development. He came back to the occupied West Bank following the Oslo Accords, a period when Israel allowed some Palestinians to return, and traveled back and forth between his two homes until Israeli authorities arbitrarily blocked him from leaving the West Bank in 2011. Israeli authorities allowed him to return to the United States one more time in 2017, but has blocked him from leaving the West Bank ever since.
Israeli military authorities first detained Niser on June 9, 2021, when dozens of combat troops raided his home in the middle of the night. Israeli officials did not tell Niser why they were arresting him, inform his family where he was being taken, and did not present an arrest warrant or detention order, according to his family, court documents, and the opinion published by the UN Working Group on Arbitrary Detention (UN WGAD). On June 13, 2021, an Israeli intelligence officer signed a four-month administrative detention order against him, which an Israeli military judge approved on June 17, 2021. An Israeli military appeals court upheld the order, which it described as a response to Niser's involvement in Palestinian legislative elections that were ultimately canceled.
When Israel released him in October 2021, Niser and his family sought the help of their then-congressperson, Representative Tim Ryan (OH), who, through the State Department, received assurances from the Israeli government that they would allow him to return to the United States, according to correspondence reviewed by DAWN. Despite those assurances, the Israeli military did not let him return to Ohio. Several weeks later, the United Nations WGAD published an opinion that Niser's arrest and imprisonment constituted "arbitrary detention."
On August 24, 2022, Israeli troops again raided the Niser home in the middle of the night, breaking down the front door to detain the then-75 year old—this time with a primetime news crew in tow. They did not present him with an arrest warrant or detention order or charge him with a crime. On August 28, 2022, an Israeli intelligence officer signed yet another four-month administrative detention order with the uncorroborated accusations based on secret evidence, per the order. Military court judge Maj. (Res) Maor Even-Khen approved the order although he reduced its length by two months, which Military Appellate Court Judge Lt.-Col. (Res.) Eyal Nun reinstated, court documents show. In December 2022, the Israeli military commander, Maj.-Gen. Yehuda Fuchs, issued a third administrative detention order, extending Niser's detention by another four months, which is set to expire on April 22, 2023.
Niser offered to leave the West Bank in lieu of detention, but Israeli authorities refused to allow him to travel on numerous occasions. According to his daughter Lameese, during his first detention in 2021, Israeli officials told Niser he could leave for the United States only if he gave up his West Bank residency, which would mean he could never return. He refused.
"My mom and dad have been together for over 50 years. They're supposed to be enjoying their older years—they're not supposed to be separated," said Niser's daughter, Lameese Agbhar.
"It just doesn't make sense. Something just doesn't click. If there's a crime they should have to charge him with it but they don't tell you anything. You're just a security risk and that's it," Niser's daughter, Lameese, added.
Arbitrary Detention
The UN Working Group on Arbitrary Detention has the mandate to "investigate cases of deprivation of liberty imposed arbitrarily or inconsistently with the international standards set forth in the Universal Declaration of Human Rights, or the international legal instruments accepted by the States concerned." The Working Group has established five categories where a deprivation of liberty is arbitrary under these standards. 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 Working Group concluded that Niser's detention was arbitrary based on Categories I, III, and V. If, as suggested in the court documents, Jamal's detention is related to his participation in elections, it would likely be arbitrary under Category II as well.
Niser's continued detention is a violation of international human rights laws prohibiting arbitrary, indefinite imprisonment without charge, and 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." Administrative detention is permitted under the Fourth Geneva Convention (articles 42, 78) only as an exceptional measure and only when absolutely necessary. The political and widespread nature of the way Israel uses administrative detention suggests it does so 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 has only continued to climb in 2023.
The Secretary of State should immediately designate Niser as wrongfully detained under the "Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act," and demand that Israel immediately release Niser. The President should also order sanctions against the Israeli officials responsible for his continued detention, as permitted by the Levinson Act.
DAWN is working closely with Niser's family to advocate for his release, meeting with officials from the State Department and other officials in the Biden Administration to advocate for the administration to actively seek his release.
