Israel Urges Top Court to Halt Sale of Declaration of Independence Drafts

The state is framing the case as an important test of principles. The main question is whether private individuals can be the owners of the state’s inalienable assets

Ofer Aderet
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A handwritten English draft of Israel's Declaration of Independence
A handwritten English draft of Israel's Declaration of Independence Credit: Kedem Auction House
Ofer Aderet

Israel continues to try to prevent the sale of five drafts of the Declaration of Independence. The state appealed last week to the Supreme Court, after the Jerusalem District Court ruled in August for the auction house and the heirs of the lawyer who composed the documents.

Justice Isaac Amit issued a temporary injunction blocking the sale until the appeal is heard.

The state is framing the case as an important test of principles. The main question is whether private individuals can be the owners of the state’s inalienable assets.

“The State of Israel and the attorney general see themselves as obliged to bring the matter to the Supreme Court out of concern for the public’s interest in preserving the cultural assets of the state and the people, for the sake of its heritage and for the sake of the coming generations,” the state wrote in its petition. “It is a matter of the inalienable assets of the state and the people, which others are seeking to auction off to the highest bidder. Its essence is returning national assets into the hands of the state.”

The Declaration of Independence drafts were kept for decades by the family of Mordechai Beham, a lawyer who wrote them on behalf of what was to become Israel’s Justice Ministry. The state argues that the drafts are the property of the state and belong in the state archive: “The documents are not anyone’s personal property, and in any event, no one is authorized to sell them on the open market for profit,” the appeal states.

David Ben Gurion flanked by members of his provisional government reading the Declaration of the Establishment of the State of Israel, May 14, 1948.
David Ben Gurion flanked by members of his provisional government reading the Declaration of the Establishment of the State of Israel, May 14, 1948.Credit: GPO

The case began in late 2015, when the Kedem auction house announced that it intended to auction five drafts of the declaration on behalf of two of Beham’s sons.

The opening price of these documents, according to Kedem’s website, is $250,000, and the estimated sale price is between $500,00 and $1 million. The documents have been withdrawn from the auction.

The state initially obtained a restraining order against the auction, claiming that the documents are state property. Beham’s sons argued that their father was a private person who voluntarily helped the Justice-Ministry-in-formation, and that the drafts had been kept at their home for decades with the knowledge of the state, without anyone taking an interest in them.

The sale was frozen for two years, during which the sides failed to reach an agreement through mediation.

The Jerusalem District Court rejected the state’s lawsuit to receive the drafts last August after a hearing. The court ruled that Beham’s sons were the legal heirs of the documents he penned, and that they had permission to sell them.

The court ruled then in principle that private individuals are permitted to possess archive material of national importance. “It is the nature of historical events to leave impressions not only on documents owned by the state and not only on objects owned by the state, but also on privately owned documents and objects,” Jerusalem District Court Judge Tamar Bazak-Rappaport wrote in her ruling.

“These drafts are original historic documents from 1948, which were edited by attorney Mordechai Beham, on the eve of the gathering of the national council in order to declare the establishment of the State of Israel,” the state wrote. “The documents are immeasurably valuable, and they are treasures that are necessarily of historic, cultural, national, public, ethical, symbolic and educational importance of the first degree.”

The state claims in its appeal that the district court erred when it didn’t recognize the petition’s “broader perspective” and the important ramifications of this case for similar cases down the line. “Viewing the dispute between the sides through a narrow prism blurs the real dispute between the sides and the repercussions,” the state argued.

“This does not reflect the profound importance of the state holding its national assets, with all the practical and symbolic implications that stem from this, and it ignores the damage involved in selling the inalienable assets of the state and the nation, which are of profound symbolic importance, in an auction to the highest bidder.”

The decision is regrettable and disappointing, said the lawyer representing the Beham family, said attorney Ronen Ketzef of the M. Firon law firm. “Instead of rewarding the Beham family, which preserved their father’s drafts for decades, the state has chosen to continue and drag the family into unnecessary legal proceedings whose result is clear,” he added.

“All of this [has happened] even though the family has promised to sell the drafts only to a buyer who will commit to preserve them in Israel and to sell them only to a public institution in Israel. We will study the appeal and respond in court,” said Ketzef. 

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