The decision by Military Advocate General Sharon Afek on Tuesday to withdraw the indictment against Mahmoud Qatusa, a Palestinian accused of raping a 7-year-old Israeli girl in the West Bank, was the only appropriate decision under the circumstances. Afek did what he needed to do as a legal professional, even if one can assume that he anticipated the negative reaction that dropping the charges and releasing Qatusa from detention would prompt.
This disapproval would come from a number of directions. It includes tweets from the right professing disappointment over not getting to see the summary trial that they dreamed of, as well as the headache that Afek would face with the announcement that the military advocate general office’s handling of the case would be investigated.
As the unusually detailed statement from the military prosecution says, the investigators and legal experts do not question the fact that the incident occurred. As far as they can determine, the 7-year-old resident of a large West Bank settlement was, in fact, the victim of a sexual assault.
The girl’s videotaped account is shocking and hard to watch. And then there is the fact that the girl singled out Qatusa, who worked at her school, and later picked him out in a lineup. In one of two polygraph tests that the suspect underwent, he was found to have been lying. (The test was conducted in Hebrew, which he speaks well, although it is not his native language. As in the United States, polygraph tests cannot be used as evidence in criminal trials in Israel because of disagreement over their accuracy.)
The investigator who spoke to the girl, and who specializes in questioning children, does not discount the possibility that she was sexually assaulted. She did note, however, that there were discrepancies in the girl’s accounts, but that is common for sexual assault victims, particularly children. In light of the girl’s condition, doubts have also been raised over whether she would be able to testify in court.
The case’s complications are mainly centered on the evidence. The girl’s family delayed reporting the case to the police, which they did only after consulting with school officials and a rabbi. A doctor who examined the girl, also belatedly, found physical signs that she may have been assaulted.
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But the police only received other forensic evidence from the family this week. And the involvement of the girl’s family members in the investigation, including that of a relative in taking of the girl’s testimony and in pointing out Qatusa, could make it difficult to gauge the reliability of her account. And as for the lie detector test, the results are not admissible in court, and the results of the two tests that Qatusa underwent are contradictory.
In light of this, the military advocate general decided that there was insufficient evidence to support the rape charges. Following consultations with senior criminal investigators and state prosecutor’s office staff, they decided that the evidence did not support a reasonable prospect for Qatusa’s conviction, and as a result, the indictment was withdrawn.
Qatusa remains a suspect in the case, and Afek’s decision has not cleared Qatusa entirely. The investigation will continue – and even more vigorously, the police say – both with regard to Qatusa himself and in other possible directions. Withdrawing the indictment should actually remove some of the limitations on additional investigative work now necessary in the case.
It is also worth noting the media’s role in the handling of the story. Only after the indictment was filed, and the right-wing group Honenu claimed the rape was nationalistically motivated, did the news media take a belated interest. Journalists aligned with the right leveraged the case in an effort to portray the left’s hypocrisy, and their apathy towards the suffering allegedly experienced by a girl for no other reason than that she is a resident of a West Bank settlement and that her assailant is Palestinian.
In practice, however, the commotion over the case actually worked in Qatusa’s favor. Other journalists, from Haaretz and Channel 13 News, began to point out contradictions in the evidence and major errors in the work of the police and prosecution. These disclosures are what led to the case’s reexamination, this time at more senior levels. They also led to Qatusa’s release on Tuesday morning.
In retrospect, one of the most important conclusions from the case is that, at the time, neither the police nor the military prosecutor’s office saw the case’s potential to generate a political and public scandal once it was finally reported. The combination of a Palestinian suspect and an Israeli girl, a victim of a sex crime in the West Bank, should have set off alarm bells earlier than it did. It would make sense that in such a case, officials at the highest level would be involved at an earlier stage and, with their experience, might also spot the deficiencies in the case before the legal proceedings progressed. But that didn’t happen, and it was only the statement from Honenu that opened up the can of worms.
The case again reveals the basic distortion involved in investigating civilian crimes within the military justice system, due to Israel’s long-standing control over the territories. When that is compounded by a police investigation by the West Bank district of the Israel Police, which is the weakest and most underfunded of all the police districts, the results should not come as a surprise. And when it is the investigators who take the lead, with the military prosecution following in their wake, there was no one to pump the brakes in time and do what was needed to point out the weaknesses in the case.
The military prosecution does in fact handle a large number of criminal cases with civilian aspects. But here it seems that an earlier review by an experienced, supervising third party would have been necessary – either the state prosecutor’s office or a civilian lawyer who would be called up for reserve duty to handle the task. It is possible that appointing a judge in the reserves with experience in handling similar offenses would also have helped.
Qatusa was not just plucked off the street as the next Palestinian scapegoat, as some critics on the left suggest. He was identified twice by the girl, and there was purportedly other evidence against him. But it’s hard to ignore the fundamental bias in the justice system in the territories, that the Palestinians who go through it are almost automatically suspected of terrorism (and are therefore guilty) and not viewed as civilians fighting for their innocence.
The army has announced that the magistrate advocate general and the police would carry out an orderly review to draw conclusions from the case as soon as the investigation is concluded. Just as Afek came to the courageous and necessary conclusion that the charges against Qatusa had to be withdrawn, one would hope that he would demonstrate similar seriousness in thoroughly examining the conduct of the case. It brought to light all of the deficiencies of the justice system in the territories, which usually do not get so much attention on the part of the media and the public.