High Court Rules to Conceal the Identities of Archaeologists

The ruling’s implication:  The law relates differentially to information inside the Green Line and information in the West Bank, implying that  continued Israeli control over the West Bank requires two legal systems under a single government. Justice Baron, in a minority opinion, maintains  that the ruling poses a threat to democracy.

In response to the Freedom of Information Act petition filed by “Yesh Din” and “Emek Shaveh,” the Archaeology Staff Officer of the Civil Administration, flying in the face of accepted practice in the Israel Antiquities Authority and worldwide, refused to reveal the identities of the archaeologists conducting excavations in the West Bank, as well as the locations of the finds and the list of items on loan.

With the assistance of Attorney Yishai Shneydor, the organizations appealed the ruling in the Jerusalem District Court, which rejected the petition “for fear of an academic boycott and damage to the foreign relations of Israel.”

The organizations appealed the decision, which was heard in the High Court of Justice by Judges Noam Sohlberg, Yosef Elron and Anat Baron. The High Court ruled that the names of the excavators (except those who agree that their information be made public) are to remain classified, based on the claim that the researchers are likely to be negatively affected by an academic boycott and by a threat to their livelihood. Regarding the list of items on loan and where they are stored, the court accepted the State’s opinion that publishing this information may be detrimental to Israeli foreign relations. The implication of the decision is that the legal standing of information within Israel differs from that of the West Bank. It should be noted that claims regarding the fear of a boycott and damage to foreign relations were heard ex parte in both proceedings.

Holding the minority opinion, Justice Baron fully accepted the position of the petitioners and wrote: “There is no democracy without a free and vital marketplace of ideas and opinions; and preventing a public discourse in advance for fear of criticism, and even a boycott, poses a real danger to the democratic values that  the State of Israel espouses. The fear of a slippery slope in this matter also takes on a concrete dimension.”

She further wrote: “All agree that, as a rule, restrictions on the Freedom of Information Act cannot be used to cover up improper conduct of the state authorities.”

In concluding, Baron wrote: “Non-disclosure of information of public importance, due only to the fear that the information revealed may serve the call for boycott ­ is unacceptable. It is improper for archaeological excavations in Judea and Samaria  to be conducted in a shroud of secrecy… Silencing the public discourse might prevent a boycott in the short term, but in the long term, silence of this kind will certainly undermine Israel’s ability to field the criticism it wishes to refute.”

Response of “Yesh Din” and “Emek Shaveh”: We appealed to the High Court of Justice to order the state to apply accepted academic standards in Israel and the world to the West Bank as well. In response, we received a law that officially sanctions and normalizes improper conduct in academics and archaeology.. The High Court, in deciding that the names and interests of the excavators, as well as the locations of the finds, remain hidden, should have taken into account the rights of Palestinians to the cultural assets found in the archaeological excavations.

One set of laws cannot apply within Israel, where archaeological research and findings are available and made known to the public, while archaeological excavations and finds discovered in the West Bank are treated as a state secret. The court’s treatment of information and the right of access to it is critically harmful to the foundations of democracy and is only a result of the state’s groundless claim to a threat of boycott.

As Justice Baron asserted in her position, the state is making inappropriate use of restrictions on the Freedom of Information Act to cover its actions. If the State believes it is acting lawfully, it must refrain from suppressing information and deal with the public discourse provoked by its actions. If the State is acting unlawfully, it would do best  to amend its ways. To our regret, the decision reveals, once again, that continued Israeli control over the West Bank requires upholding two different legal systems under a single government, even in academia.