Drafts of Israel's Declaration of Independence that are privately owned can be freely bought and sold, a district court ruled on Sunday. The ruling comes two years after the state went to court to stop the sale of the documents.
“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.
The case began in late 2015, when the Kedem auction house in Jerusalem put up for auction what it billed as the first drafts of the Declaration of Independence. The owners of the documents, who asked Kedem to auction them, were the sons of the declaration’s writer, Jerusalem attorney Mordechai Beham. In 1948, on the eve of the establishment of the state, Beham was tasked by the future justice minister, Pinchas Rosen, with the composition of a document ahead of the declaration of independence of the State of Israel.
Beham kept these drafts in his home and eventually bequeathed them to his sons. After Kedem announced the auction, the state asked the court to stop the sale from proceeding, arguing that the state of Israel owned the document because it was composed as part of Beham’s work as an employee of the future state. The state also argued that the drafts were of considerable historical significance and that they should be in the State Archive and not in private hands.
Beham’s sons, however, said their father had been a private citizen who had voluntarily assisted the future Justice Ministry (the justice department of the pre-state governing body known as Minhelet Ha’am) to compose the document and that in any case, decades had passed since it was written and therefore the statute of limitations applied to any right the state may have had to the drafts.
The sale was frozen for two years during which the parties tried to reach a compromise through mediation, which failed.
Not only did the judge accept the arguments of Beham’s sons and allow them to sell the drafts, she also ordered the state to pay their court costs and those of the Kedem auction house, a total of 50,000 shekels ($13,948).
The case attracted the international attention of archives, museums and scholars because of the important question in principle it presented: Does a government have the right to “nationalize” privately owned historical documents?
The judge ruled firmly against the state in her verdict, noting that not all archival material has to be in the State Archive, but only material that belongs to the state or governing institutions that preceded the state. In this case, the judge ruled, the state must request the owner’s consent to examine the material, photograph it or copy it and it has no right to nationalize it.
The verdict directed veiled criticism at the state for not bothering to seek out the drafts for so many years, if it claimed to own them. During the trial it emerged that there is no state agency responsible for locating archives in private hands.
The judge determined that it was unclear whether Beham was a “civil servant” when he wrote the document, before the state was established, or whether he volunteered to do so. But even if he were a “civil servant” not every document that a state employee writes automatically belongs to the state. “I don’t think that a reasonable employer insists on receiving everything an employee writes in his own home on his own time.” Despite the historical importance of the document and the unusual nature of the task, it would be unlikely that the state would demand that the employee keep all his notes and drafts as he worked on the task.
The judge also accepted Beham’s sons’ statement that they had never tried to conceal the fact that they had the drafts, that they were published in a book and an article and the state had been informed of their whereabouts in the past.
The verdict was delivered only after Beham’s sons committed to selling them only to a buyer who would commit not to remove them permanently from the country or give them to any entity except a public institution, a museum or an exhibition in Israel.
“The issue is not giving up documents and throwing them into the recycling bin of history but it seems that the dispute is over the identity of the entity that will control the exhibition of the documents in public in Israel and assuring access by scholars to the originals,” the judge wrote.
The verdict has implications for the future; the State Archive has admitted that quite a few civil servants have taken materials home that were products of their work for the state. The State Archive has argued that this is illegal and have even issued veiled threats at senior civil servants who keep such documents at home. One prominent case was that of Ariel Sharon, who as prime minister kept many such documents at home. Only recently, following negotiations between the State Archive and Sharon’s sons, were some of the materials he kept at home transferred to the Archive.
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