“There is no democracy without a lively, free marketplace of ideas and opinions.“

The West Bank is an area rich in antiquities and archaeological sites – a reminder of the long and varied history of the region. Israel began to take an interest in the antiquity sites in the West Bank immediately after it occupied the area in 1967. Within the Civil Administration, archaeology comes under the auspices of the Staff Officer for Archaeology (SOA) who administers this territory on behalf of the Military Commander.

The information published by the SOA about his work and the work of his unit is superficial and incomplete compared to accepted standards in the archaeological profession, and even in comparison with the publications of the Israel Antiquities Authority. The SOA’s policy of obfuscation also reflects Israel’s proprietary attitude towards the archaeological treasures of the West Bank. This position contradicts international law which views archaeological sites and antiquities as cultural assets belonging to the occupied territory.

Antiquities are a limited and unique public resource. When they are managed under cover of darkness, out of a preference for concealment over disclosure and transparency, the public is denied interesting and important information, as well as the possibility of voicing public criticism or oversight of the actions of the SOA. Moreover, this information is the result of activities carried out in an academic environment, the essence of which is the publication and sharing of information.

In an attempt to receive information the SOA does not make available to the public on his own initiative, in 2013, Yesh Din and Emek Shaveh submitted two Freedom of Information Applications to the Civil Administration asking for information about various issues relating to Israel’s policies regarding archaeology in the West Bank. The applications were submitted pursuant to the Freedom of Information Act, which compels Israeli authorities to provide information in their possession within a period of time set in the law and subject to certain exclusions (for example, if providing the requested information might threaten national security). Most of the requested information related to procedures and orders regulating antiquities in the West Bank, as well as information on archaeological sites and excavations, the location where artifacts are stored, a list of artifacts loaned to third parties, and agreements for the management of antiquity sites.

The Civil Administration did not provide the requested information for about a year, despite repeated communications from Yesh Din and Emek Shaveh, including letters of complaint sent to the Civil Administration Public Inquiries Officer, the Head of the Civil Administration and the Government Freedom of Information Unit at the Ministry of Justice, in the hopes that they would assist in the provision of the information. At that stage, the Civil Administration made no argument that there was an impediment to providing the information. It simply ignored the requests and delayed the response far past the time permitted in the law.

Ultimately, with the information still withheld, on July 20, 2014, the organizations filed a petition to the Jerusalem District Court sitting as the Court of Administrative Affairs against the SOA and the Civil Administration. Proceedings in the court case were protracted, and the organizations were forced to reduce the scope of the information requested, while receiving some of the details sought.

The Civil Administration did announce it refused to divulge the information we requested with respect to researchers who had received permits to excavate in the West Bank, due to concerns over academic boycotts of these researchers and their academic institutions. The Civil Administration also refused to provide the list of archaeological artifacts on loan to museums, exhibitions and other parties in Israel and the world, as well as information about where artifacts uncovered in the West Bank are stored, citing concerns over possible harm to Israel’s foreign relations.

The State presented its arguments with respect to concerns over boycotts and possible damage to foreign relations ex parte, precluding us from hearing the basis for the State’s concerns and providing a rebuttal. The District Court dismissed the petition in November 2016, accepting the arguments presented by the Civil Administration.

In December 2016, we filed an appeal with the Supreme Court, asking it to overturn the decision of the District Court and instruct the Civil Administration to provide the information. Some of the sessions took place ex part in the appeal as well.

One of the arguments raised in the in both the original petition and in the appeal was that this type of information, as it pertains to archeology inside Israel, is available to the public as the Israel Antiquities Authority posts it on its website with no prompting.  We also argued that the policy of obfuscation contradicts the academic interest in the name of which excavation  permits are granted. Sooner or later, academic research is published. It does not stay secret.

On May 16, 2019, the Supreme Court dismissed the appeal. The majority justices (Noam Sohlberg and Yosef Elron) accepted the State’s arguments that divulging the information could undermine Israel’s foreign relations and encourage an academic boycott. The dissenting opinion (Justice Anat Baron) held that the Court should have accepted the appeal. One of the reasons Justice Baron gave for her decision was that concern over public criticism could not justify concealing information and such concealment contradicts democratic values:

“… The failure to disclose the information sought in the procedure discussed herein, over boycott concerns in and of itself silences academic-archaeological discourse around excavations in Judea and Samaria with the outcome of harming academic research instead of protecting it […] and more. The lack of disclosure silences public debate over the legitimacy of archaeological digs in Judea and Samaria, which is, as noted, a controversial issue. Public debate on this issue may direct criticism toward those excavating, perhaps even a boycott, as the Respondents argue.  However, silencing debate by concealing information cannot assuage these concerns. There is no democracy without a lively, free marketplace of ideas and opinions. Preventing public debate due to concerns over criticism, even a boycott, constitutes a real threat to the democracy Israel espouses. The fear of a slippery slope with regards to this matter also has a tangible facet”.

Justice Baron further wrote that the exclusions to Freedom of Information must not be used to hide improper conduct on the part of the authorities.

“[…] The exclusions to Freedom of Information enumerated in Section 9(a) of the Law may not be invoked in order to cover up or hide improper conduct by state authorities on any matter […] Inasmuch as the Respondents handle archaeological artifacts originating in Judea and Samaria in accordance with the law, this should, in theory, significantly alleviate concerns that disclosure of the requested information (which, as I have already noted, is general information) would cause any harm to the State of Israel”.

The SOA possesses extensive powers which enable him to influence and even shape the archaeological-historical narrative of the occupied area. Israel’s actions with respect to archeology in the West Bank reflects a viewpoint that defies international law, appropriates cultural treasures and dispossesses Palestinian residents of them. It appears that the concealment of information regarding this policy is meant to keep it hidden from the public and silence public criticism of it.

For more information, read the report: Appropriating the Past  – Israel’s Archaeological Practices  in the West Bank.