News
Important High Court Decision:
Landowners Not Required To Fund Archaeological Excavations
by Betzalel Kahn Special to Yated Ne'eman

The High Court has determined that the Antiquities Authority cannot demand money for archaeological excavations from landowners whose property has been declared an antiquities site.

The High Court's decision was made in the wake of the rejection of a petition filed against the Antiquities Authority demanding that it determine that the Authority "be unable to declare an area an antiquities site merely on the assumption that antiquities are located there, without having actually discovered antiquities on the site."

Justices of the High Court turned the request down, determining that the Antiquities Authority may declare an area an antiquities site "if there is a reasonable likelihood that antique artifacts are located in the area, even on the basis of scanty proofs."

However, the High Court sharply criticized the Antiquities Authority for demanding that the property owners subsidize excavations on those sites.

"Justice and logic declare that the expenses of an examination meant to serve the public should not be randomly imposed on one person merely because he owns the land," determined Justice Yitzchak Zamir.

The petitioners, members of the Lilly Danker Estate Company which owns plots of land in the Kfar Shemaryahu region, filed a petition with the High Court. The area in question was declared an antiquities site on the basis of the assumption that it contains graves from the Byzantine era.

The High Court justices, Yitzchak Zamir, Dorit Beinish and Menachem Ilan determined that the Antiquities Authority can declare an area an antiquities site "if there is a reasonable possibility that there are antiquities on the area." Justice Zamir noted that it is possible to declare an area an antiquities site on the basis of even scanty evidence. "Only an examination of the area, supervised by experts in the profession, can prevent the accidental or intentional destruction of hidden antiquities during development work in the area."

Justice Zamir ruled that the petitioners may turn to the Antiquities Authority with a request that they conduct an examination of the site, in order to determine if it contains antique artifacts. If the Authority demands a fee for the examination, he added, the claimants may turn to the High Court once more.

In the wake of this ruling, attorney Yaakov Simon is considering the possibility of suing the Authority in a test case for the sums it collected illegally in recent years.

Attorney Simon represents a number of contractors who were financially hurt by demands of the Antiquities Authority, which over recent years has demanded millions of shekels from property owners and contractors for the execution of various archaeological work on sites which the Authority declared as having archaeological value. The High Court has now declared that all these requests were illegal.

Concurrently, the Antiquities Authority has threatened to thwart the progress of various building and development projects.

In its announcement, the Antiquities Authority said: "The Authority hopes that the Israeli government will pay proper heed to this issue, and will prevent the suspension of building and development, a situation which is liable to result from the failure to conduct rescue excavations as demanded by law."

The meaning of this announcement is that if now it is prohibited to collect fees from the contractors and property owners and if the State doesn't supply the funds, the Antiquities Authority, which has the exclusive right to approve construction on an area on which antiques are found, will not grant the necessary permits.

Since most of the promoters and developers who paid for the "rescue" excavations are public, government bodies (such as Public Works Authority and the Ministry of Housing) and not private promoters, the Authority has made it clear that if the High Court's decision that the rescue excavations be funded by the State is implemented, they will demand a re- allocation of the government budget, but not necessarily its increase.

Jurists nonetheless add that the Antiquities Authority might possibly find a way to skirt the High Court order, as it did a number of years ago, after the ruling issued by the High Court when Kibbutz Hagoshrim sued the Authority for collecting money to subsidize archaeological excavations. Despite the ruling of the High Court, the Authority continued to demand payment for these activities.

In the wake of the High Court's decision, the Federation for the Prevention of the Desecration of Graves said: "Now the true face of the directors of the Antiquities Authority, who pretend to be acting in the name of law and justice, enlightened science and integrity, have been disclosed. Now their baseness, as a gang of thieves which has been robbing and stealing from the public for many years, has been revealed.

"It has become clear that the robbers of the dead are also the robbers of the living, and we hope that now that the robberies it has committed have been curtailed, their massive robberies of the dead, which take place every day by archaeologists throughout the entire country, will cease immediately, and the very serious and difficult offense to the feelings and beliefs of thousands upon thousands of pained Jews, who believe with full faith in the eternity of the soul and techiyas hameisim, will end," they stated.

Despite the positive court ruling, there were two additional grave desecrations in Israel last week, one carried out by archaeologists of the National Antiquities Authority, and another by archaeologists from the University of Tel Aviv.

The university team wantonly desecrated all the graves in an ancient Jewish burial cave in a vacant lot in the Nachalas Yehuda neighborhood in Rishon LeZion. Once again, members of the Organization for the Prevention of Grave Desecrations were summoned to the site only to find the entire cave emptied of its bones: broken and shattered bone fragments scattered all around the entrance of the cave, lying on the ground, exposed to the elements.

The archaeologists had started digging in a second burial cave at the site, but the activists managed to halt this digging, with the help of HaRav Yitzchok Fisher, the neighborhood rabbi. Aided by avreichim from a nearby kollel, the activists did the best they could to return the bones and fragments to their original resting places, and then set about making plans to guard the remaining cave from any future digging by the archaeologists.

The most recent desecration by the Antiquities Authority was on Moshav Reshafon near the town of Hertzlia. Here, too, it was an ancient Jewish burial cave, and the archaeologists brutally excavated the whole cave, emptying it of all its graves, and leaving the bones crushed and scattered across the ground outside.

Again, the desecration was reported to the Organization for the Prevention of Grave Desecrations, but the activists arrived only after the damage was already done. It was reported that the cave was located on a private lot in the moshav, and was in no way threatened by any construction in the area. Therefore, as repeatedly has been the case, it was impossible for the Authority to claim that this was a "rescue dig" in order to save archaeological artifacts from destruction.

One activist remarked that it was another instance where the Authority "has done evil just for the sake of evil."