Privacy of war crimes victims

Israel is going through one of its most difficult times in its 75 years of existence.

The horrible actions, massacre, rape and kidnap of children, women, men, and elderly people by Hamas-Isis on October 7th provided grounds for difficult questions also regarding privacy.

The right for Privacy is a fundamental right according to Israeli law but the national obligation to let the world know the vicious attack details, is also to be considered.

One of the most difficult examples is the terrible rape crimes conduct by Hamas-Isis on women who attended the Nova music Festival and found themselves raped, mutilated, and then murdered. Those who were "lucky" to stay alive are now facing the terrible dilemma between staying private with their agony, and the public interests to let the world know what was done to them.

Another terrible dilemma relates to the fact that these barbaric actions were filmed by the attackers and are available through several digital platforms, of course without the victims' consent or their families'.

Should the State use these horrifying footages despite the brutal violation of the victim's privacy in the name of the public interests to let the world know what was done?

In Israel, the right to privacy of victims of a criminal offense is derived from two sources: one, the right to privacy of every person in the country. Second, the rights of crime victims in particular. The right to privacy is a fundamental right in the State of Israel, enshrined in Article 7 of the Basic Law: Human Dignity and Freedom. In 2001, the Crime Victims' Rights Law entered into force, which gave a place to the victim in the criminal procedure and established rights granted to the victim.

In general, the right for privacy according to Israeli law is a relative right. For example, during the Covid pandemic the High Justice Court in Israel determined that during an emergency (then the worldwide health pandemic), not everything is permitted, and a balance between public interests and personal rights must be performed cautiously. 

Theoretically, the privacy of rape and murder crimes' victims should be 100% absolute unless they choose otherwise. But in the digital world of today, practically, privacy is almost gone. Once published, it is very difficult to remove on-line evidence, for good or bad. What is left is the moral question – what one does with this privacy violation or more importantly, what one does to never allow a situation that raises such questions.

Article provided by INPLP members: Beverley Zabow and Adi Barkan-Lev (BL&Z Law Offices & Notaries, Israel)

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Dr. Tobias Höllwarth (Managing Director INPLP)