The paper of the day is Toward Nakba as a Legal Concept, by Harvard SJD student Rabea Eghbariah, which has just been published—at least I think it has. Eghbariah’s article has had a long history of getting to press. In November 2023, the board of the Harvard Law Review decided against publishing the post in the HLR Blog, leading The Nation to publish a shorter version. Then the Columbia Law Review decided to publish the longer piece, but the board suspended website access to the piece because it had not gone through the ordinary publication process (not all editors had had the chance to read it, and the board said the article had been handled with unusual and “unacceptable” secrecy, according to the New York Times).
I get why the Columbia board took the view it took. I think, though, that in 2024 people who want to read the paper are going to read the paper and that removing it from the Law Review’s website might do more harm than good in the sense that it seems to license comments like the comment Eghbariah made to the Times: “What is so scary about Palestinians speaking their truth?”
It’s hard to know where to begin when reacting to Eghbariah’s paper. No, his view that the world has a “responsibility to dismantle” Zionism (p. 989) is not consistent with the “universal lessons of the Holocaust” (p. 901-02). No, it is not surprising that Israel ended up controlling land outside the borders proposed by the UN Partition Plan (p. 926-27), given that while Israel had accepted the plan, the Arabs rejected it, invaded Israel, and lost the war that ensued. No, the Mizrahi Jews were not Arabs (p. 913-14), any more than the Ashkenazi Jews were Germans or Poles, at least if the history of antisemitic repression in Europe and in the Arab world is any guide. No, it’s wrong to see the early political Zionists as Europeans seeking “to extend Europe elsewhere by the means of colonization” while seeing the Arabs in Palestine as the indigenous population (p. 908), given the situation of the Jews in Europe and the history of Jewish ethnogenesis in the land of Israel, exile, repeated conquests, including by the Arabs, and then return. No, it is wrong to complain that the birth of the Israeli state was a “process of homogenizing the territory along ethnonational lines” (p. 977) when Israel lives among explicitly and formally Arab and Muslim states, many of which expelled their Jewish populations at about the time of Israel’s formation. No, no, no.
One of the overarching impressions I have of Eghbariah’s paper is the lack of any introspection about the Palestinians’ shared responsibility for their plight. In his view, following Israel’s declaration of independence, “a war with Arab countries commenced.” (p. 928). In his paper, the only groups described as “terrorist” are the Irgun and Lehi (p. 926). The following words do not appear in the main text: intifada, rocket, suicide bombing. The word Hamas appears once in the text, when Eghbariah writes that its “rise to power” added “more layers to the already polylithic structure of occupation.” (p. 942). In this sense, the paper is almost the Platonic ideal of the refusal of the Palestinians to acknowledge their own agency and role in their affairs or to accept what Eghbariah understands (p. 905) that many though not all Israelis (through the writings of the New Historians and others) have long accepted: that the Israeli/Palestinian conflict is complicated, and that neither side is entirely innocent.
However, Eghbariah’s paper is important and should be read, because it is a sophisticated statement, by a writer with elite credentials and institutional affiliations (including degrees from Tel Aviv University and the University of Haifa), of the dominant Palestinian perspective (“Palestinians speaking their truth,” as he told the Times), a perspective that is not going away and that any resolution of the conflict has to address. The reality of that perspective is the reason that the only sane thing to do is to acknowledge that there are two deeply held perspectives that cannot be reconciled and to agree to divide up the land, with both peoples getting part but not all of what they want: the Jews getting a majority Jewish state in the part of the land roughly corresponding to the 1967 borders; the Palestinians getting a Palestinian state in the West Bank and Gaza; the two sides having some agreement about Jerusalem; security guarantees for all; and an end to the fantasy of mass Palestinian return to the Jewish state. But that is precisely what papers like this seek to encourage the world to reject. The Palestinians themselves have, by and large, rejected it, and that has led to some of the more ridiculous factual and moral assertions deployed to justify the rejection of the only sane option: the denial of any historical Jewish link to Jerusalem, for example, the denial that the Jews really are the Jews, or the claim that what the Israeli state has done to the Palestinians is worse than the Holocaust—all statements made by the Palestinians’ national leader within the last year or so.
There is of course another potentially sane thing to do, which is for the Palestinians to go to war to achieve their political goals. But that is what the Palestinians have been doing for decades in various ways, with results that have been worse and worse for them over time. And so if the definition of insanity is doing the same thing over and over and hoping for a better result, perhaps going to war is not so sane after all.
In the long run, papers like this are much more important, and much more important to rebut, than the often foolish and uninformed things folks say during campus protests. Papers like this plant seeds that can yield fruit decades later. We can see that in the international law world today, where a long project of seeking to apply terms like genocide and apartheid to the Israel/Palestine conflict have begun to bear fruit in the ICJ and elsewhere. And so I hope that other scholars are out there digging into this paper and its footnotes, and that we’ll see a sophisticated, elite take on this paper from someone with awesome credentials. That is so important. Next year in the Yale Law Journal!
Image credit: CarmenEsparzaAmoux (CC0)
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