The state’s failure to prevent the auction of drafts of Israel’s Declaration of Independence, as reported by Ofer Aderet on Monday, must spur renewed debate on a matter of principle. Clear guidelines must be set to distinguish between public and private ownership and to define if, when and under what conditions the state has the authority to “nationalize” historical artifacts that are in private hands. The Archives Law (1955) is antiquated, confusing and inadequate when it comes to this issue.
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The Jerusalem District Court found against the state on Sunday, ruling that a private individual may own and even sell an archival document, even if the state claims that it is a national asset of historical importance that belongs in the Israel State Archives. In her ruling, Judge Tamar Bazak-Rappaport wrote, correctly, that “It is the nature of historical events to leave impressions not only on documents [and] ... objects owned by the state, but also on privately owned documents and objects.” She also noted that a state employee is permitted to have at home draft documents necessary to his work.
These dry words have far-reaching ramifications because they contradict the archives’ interpretation of the law, which is that documents created by state employees are the property of the archives. This ruling therefore necessitates a thorough, comprehensive debate, since it could mean that cabinet members and prime ministers, past and present, may keep documents they wrote in the course of their public service — as, indeed, some have done, such as Ariel Sharon.
Similar disputes have reached the courts in recent years. One need only recall the cases of the literary estate of Franz Kafka, which was taken out of private hands and placed in the National Library of Israel; and the archive of Vienna’s Jewish community, which remained in Jerusalem’s Central Archives for the History of the Jewish People rather than being returned to its original owner, the Viennese Jewish community.
It’s time to redefine the rules of the game and set limits and conditions for the ownership of archival materials. Private collectors can be made to at least provide copies of the original documents they own to the state archives so they can be made accessible to the public, even if the original is not preserved there. At the same time, a fund can be set up to procure for the state, at market value, especially important items and to establish in law what priority rights, if any, the state should be given to purchase them.
In any case, the law must determine a protocol for maintaining the delicate balance between the right to private property (in the spirit of the principles of the Declaration of Independence) and the state’s obligation to preserve intellectual property of historical and national importance.