Israeli West Bank Archaeological Digs Must Not Be Made Public, Top Court Rules

Supreme Court rejects NGOs petition, arguing that publishing information publicly could expose archaeologists to academic boycott and undermine Israel’s position in future diplomatic negotiations

Tourists visit the archaeological site of Tel Shiloh in the West Bank, March 12, 2019.
Sebastian Scheiner,AP

Israel is not obligated to release information about archaeological digs in the West Bank, the Supreme Court ruled last week, rejecting an appeal by two nongovernmental organizations.

The decision upholds both the state’s position and a lower court ruling. The state had argued that releasing the names of the archaeologists carrying out the digs would make them vulnerable to academic boycotts.

It also argued that releasing the location of the digs could undermine Israel’s position in future diplomatic negotiations.

The original petition was filed with the Jerusalem District Court by two left-wing organizations, Yesh Din and Emek Shaveh. After the court rejected the petition, the organizations appealed to the Supreme Court.

The petition sought to make public information about digs carried out under the auspices of Israel’s Civil Administration in the West Bank, including their location, the names of the archaeologists conducting them and details of any findings loaned to museums, research institutes or exhibits.

Under the 1954 Hague Convention, an occupying power is forbidden to remove archaeological findings from occupied territory.

But justices Yosef Elron and Noam Sohlberg accepted the state’s position in full, with Justice Anat Baron dissenting.

“There’s a clear and genuine fear that publishing the names of the archaeologists … could cause concrete damage to their professional and financial interests, as well as those of the institutions with which they are affiliated,” Elron wrote. “Publishing the archaeologists’ names exposes them to academic boycotts in a manner that could genuinely damage their research work and their academic futures.”

He stated that publishing their names could limit their ability to publish their research in international journals, give lectures, participate in academic conferences, cooperate with colleagues and volunteers from other countries, obtain stipends and research grants, and participate in programs at academic institutions overseas.

“In addition, I’ve been convinced that publishing the archaeologists’ identities could even undermine their ability to complete the specific digs about which information has been requested and to make their future results known through academic publications,” he said.

Elron also accepted the state’s argument that revealing the site of the digs would undermine Israel’s foreign relations in various ways, including “undermining its interests in the framework of future negotiations with the Palestinian Authority, and could even serve as a tool of attack for parties that seek to harm Israel in the international arena.”

The one concession made to the appellants in the ruling was that the state should give them the names of any archaeologists who didn’t explicitly object to this.

Baron, in her dissent, argued that fear of boycotts didn’t justify keeping information from the public.

“Nondisclosure has the power to silence public debate over the legitimacy of archaeological digs in Judea and Samaria,” she wrote, using the Hebrew term for the West Bank. “And as noted, this is a controversial issue.

“Public debate could indeed invite criticism of the archaeologists, and perhaps even a boycott, as argued by the respondents,” she continued. “But silencing the debate by concealing the information is no cure for these fears.

“There is no democracy without a vibrant free market of ideas and opinions, and preventing public debate for fear of criticism, or even of boycotts, poses a real danger to the democratic values Israel espouses. The fear of a slippery slope on this issue is also tangible.”

Emek Shaveh said it had wanted the court to order the state “to apply the academic standards accepted in Israel and worldwide to the West Bank as well,” and was disappointed that the court didn’t do so.

“As Justice Baron said in her dissent, it’s impossible to apply one law within Israel, under which archaeological research and findings are available to the public, and at the same time treat archaeological digs and artifacts discovered in the West Bank as a state secret,” its statement continued. “Ultimately, this decision says that under current circumstances, even basic academic standards are superfluous, and continued Israeli rule over the West Bank requires maintaining two different legal systems under the same government, even in academia.”