Drafts of Israel’s Declaration of Independence Cannot Be Auctioned, Top Court Rules

Ofer Aderet
Ofer Aderet
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A draft of Israel's Declaration of Independence written by Mordechai Beham in 1948.
A draft of Israel's Declaration of Independence written by Mordechai Beham in 1948.Credit: Ariel Shalit
Ofer Aderet
Ofer Aderet

The auction of drafts of Israel’s Declaration of Independence that had been held in private hands was blocked on Monday by the Supreme Court, which ruled the papers should be handed over to the national archive, ending a legal struggle that began in 2015.

“The drafts of the Declaration of Independence are part of the State of Israel’s cultural assets, testimony to our past, a part of our collective identity,” wrote Justice David Mintz, adding that the duty to return cultural assets has been a central contention in ownership laws. This, however, was a clear case of unique public interest, he wrote.

Mintz’s ruling was a definitive victory for the state, and paves the way to “nationalize” other historic documents held by private individuals who created the documents in the course of their work as civil servants.

In 2015, the Jerusalem auction house Kedem displayed “the first drafts of the Declaration of Independence” and began the bidding at a quarter-million dollars. Kedem estimated that it could get up to a million dollars for the papers.

The sellers were the sons of the author, a Jerusalem lawyer named Mordechai Beham. In 1948, before Israel’s establishment, Beham was tasked by the future Justice Minister Pinchas Rosen with drafting the declaration. Beham kept the initial drafts at his house and willed them to his sons.

But after Kedem announced the auction, the state claimed it was the rightful owner as they had been penned by an employee of the state-in-formation. The state argued that the documents were of historic importance and should be in the national archive, but Beham’s sons claimed that their father had been a private individual who volunteered to help the future Justice Ministry (the legal department at the People’s Administration) and in any case, decades had passed since they were written, so the statute of limitations applied.

The sale was suspended for two years for the sake of an arbitration process, which failed.

In 2017, the Jerusalem District Court rejected the state’s claim, saying not every document written by a state employee automatically belongs to the state, and that private individuals could own archival documents of national importance. “I do not believe that a reasonable employer would insist that everything an employee records for himself in his free time should be delivered to the employer,” wrote Judge Tamar Bazak-Rapoport.

The Supreme Court overturned the District Court ruling Monday, saying Beham wrote the papers while working as a civil servant, even if he did so in the gap between Mandatory Palestine and the State of Israel’s establishment.

The national archive has acknowledged that many former civil servants kept materials created during their work for the state, and has argued that this is illegal conduct. One case involves former Prime Minister Ariel Sharon, who kept a lot of papers of his public work at home.

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