Analysis

In Dropping Rape Charges Against Palestinian, a Self-evident Legal Decision

In order for lessons to be drawn, one must ensure that debriefings are geared toward structural and procedural improvements, not toward looking for heads to roll

Mahmoud Qatusa is freed from prison, June 25, 2019.
Emil Salman

The decision by Military Advocate General Sharon Afek to drop charges against Mahmoud Qatusa for raping a 7-year-old girl was a correct and self-evident one. Not every advocate-general would have made that decision, which makes this one commendable.

The decision came after the unusual step was taken to expand the investigation even after charges were filed. This brought into focus some of the problems with the evidence. Further evidence provided by the family of the girl did not support suspicions against Qatusa.

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The decision does not completely exonerate Qatusa, making cries of joy by those believing in his innocence premature. There was some basis for the original suspicions, but it was insufficient to ensure conviction. This usually leads to a suspect’s release.

The decision was therefore justified. The advocate-general is obliged to not fixate on an initial decision but to constantly test whether the basis for the original charges still exists or has weakened. It’s often difficult to remain open-minded and rescind an earlier decision, but Maj. Gen. Afek did.

One should distinguish between the decision to release Qatusa and his continued employment at the school that the girl attended, as long as some suspicions remain. The presumption of innocence is irrelevant and a reasonable decision should be made based on administrative evidence. There is insufficient public information to take a stand here.

The head of the police investigative department promised that the police would intensify its probe of the case, giving it the highest priority. This is a worthy commitment, regrettably not given earlier. The early stages of the investigation may have led to contamination of evidence, which may be irreparable.

The more heinous the crime, the bigger the obligation the state has to solve it and bring those responsible to justice. This should be reflected in efforts and resources allocated and in the quality of investigators assigned to the case. This doesn’t change the presumption of innocence and the need for unassailable evidence that leaves no doubts. One may hope that the resources invested in this case will lead to the perpetrators and bring them to justice.

Even though much is unknown, there are signs that this investigation was badly mishandled. Numerous stories in this newspaper have described in detail the problems associated with the charges filed by military prosecutors against Qatusa. This included the decision by military courts in Judea and Samaria to detain Qatusa, perhaps unjustifiably; the apparent poor oversight of the investigation; the way social services and educators handled the victim’s interests, which apparently was less than optimal. These must be looked into so lessons may be drawn regarding different aspects of the entire system, including what was released to the media regarding polygraph results and the attribution of other violations to Qatusa.

In order for lessons to be drawn, one must ensure that debriefings are geared toward structural and procedural improvements, not toward looking for heads to roll. One must commend the military advocate-general in this matter as well. He’s already agreed with the head of the investigative department to review the way the case was handled when the investigation is over.

The manner in which the prosecution was conducted shows how essential a monitoring mechanism is for prosecutorial processes, including military prosecutions. Such a mechanism was put in place by Tzipi Livni when she was the justice minister, although it had some flaws that needed correction. Under Justice Minister Ayelet Shaked, who yielded to heavy pressure by attorneys, the mechanism was changed, separating system analysis from the addressing of complaints. The former was given to the state comptroller, weakening the oversight process.

This case also highlights the vital role played by independent and critical media in the achievement of a just process. This is the kind of media the present regime is trying to harass and suppress.

It’s now clear that Qatusa was judged prematurely. It’s shameful that some Knesset members such as Avigdor Lieberman and Bezalel Smotrich rushed to convict Qatusa. Topping them was Public Security Minister Gilad Erdan, who is immune to learning from previous flops he made in similar cases, and who, like God, can read people’s inner motives. He thereby attributed a political motive to Qatusa, claiming he was driven by incitement and hatred spewed by the Palestinian Authority. Perhaps one shouldn’t be surprised that someone himself devoted to incitement and hatred easily attributes such motives to others. It’s unclear if this is racism, pandering to voters, or a combination of the two.

No investigation or lessons drawn will remove the basic problem, in which we’ve created two types of people in the West Bank – settlers and Palestinians. This inexorably leads to injustice, and to the idea that it’s only natural that a Palestinian will rape a little girl for political reasons.