Paper of the Day: Toward Nakba as a Legal Concept

Free Palestine in graffiti

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)

13 responses to “Paper of the Day: Toward Nakba as a Legal Concept”

  1. Paul Wielgosz

    Your comments have a Zionist tinge to them or are the result of a thorough misunderstanding of the Arabian Partition scheme and the guidelines of the UN.
    Firstly the Holocaust provides no Justification for the partition of what was Palestine and especially in the horrible fashion that it ignored the will of the Arabs (indigenous to the land for the last centuries) on the basis of what, a religious text.
    Secondly the partition by both the British (the occupier at the time) and the UN were also not justified as the occupier should not be doing that and the UN ignored its primary charter of do no harm in terms of the Palestinian people.
    Thirdly the Jews were expelled from the other Arab nations after the UN authorized the illegal land grab for people from an entirely different continent whose problems stemmed from their treatment by Europeans.
    I’m stopped reading your comments at that point.

    When I actually read the paper I can provide comments on it.

    1. My views are indeed tinged by Zionism, the belief that like every other people in the world, the Jews have the right to self-determination in their land.

      1. Paul Wielgosz

        So from a religious perspective why is a Jewish right to the land based on a text in one document greater than text in a different religion’s document.
        It is a holy land for Christians and Muslims yet you believe that your religion trumps all current religions and the indigenous population that has lived there for centuries.
        The answer to these items might give insight into the antisemitism problems experienced over the last couple of centuries. If one demands that his rights, based on a religion, are more important than others then a backlash, in that society, will occur.
        If a religious group requires inclusivity by others in a society and then practices exclusivity for itself then again there will be a backlash from that society.
        It is interesting that Arab Jews were well integrated in the Middle East, with a variety of religions, until the European Jews began immigrating in large numbers to the Arab nations in the 1920s. It is my opinion that it became very clear to the Arabs, in the 1920s, that participation in the society by the Jews was migrating to the exclusion extreme, as it did in Europe, and the backlash in the Middle East began.

        Further in your initial comments Israel is an apartheid state – you cannot deny this with three sets of laws for three classes of people – Jews, Israeli Arabs, and Arabs. If you can recognize that the treatment of Jews by the Nazis, not even including the concentration camps, was absolutely atrocious then why is the treatment of Palestinians by Zionists any different? Subjugation of a people, complete control of their agency, theft of their property, theft of their land, murdering indiscriminately, the government backing (or not preventing) attacks by citizens on Palestinians. Really if we change the one distinctive word of Palestinians to Jews then what is different between what the Nazis did to what the Zionists are doing?
        Israel was created on genocide, displacing mass amounts of people, the theft of all infrastructure/Property and of course rape and murder – all of this is documented. This Genocide has continued in various forms for eight decades.
        You can feel good and say that this latest uprising it is all about Hamas but it is obviously much more ominous than that. Destroying everything in Gaza – all cemeteries, churches, monuments, orchards, infrastructure items like hospitals, schools, universities…….. that’s not just Hamas.
        Hamas killed 1200 Israelis on 7-Oct and Israel has killed that number of Palestinians Every Year for the last 50 years.
        Sadly throughout the world Zionism is now synonymous with Nazism – the West Bank is now 650+ Warsaw ghettos and Gaza for the last 19 years has simply been a glorified concentration camp without the ovens.
        In the simplest form it really amounts to a passage in that famed religious text that you rely on so heavily – actually read it – You reap what you Sow.

        1. This is the kind of comment it is wisest not to respond to, but I want to correct one common confusion you express. Judaism is of course a religion, but the Jews are both a religious group and a nation and an ethnicity. There are many Jews who are atheists, and the majority of Jews in Israel are not religious, nor were the state’s founders. Political Zionism is not about religion, but about nationality. The French people have a state in France, their homeland. The Japanese people have a state in Japan, their homeland. The Arab people have many states. Jews have a right to a state in their homeland, too. Note that I did not claim that the Jews are the only people who have rights in the land. That is why the land must be shared in the long run.

      2. Chris Perez

        Political Zionism is a genocidal settler colonial project. Have you ever read what Herzl or Jabotinsky wrote? Israel doesn’t stop being a settler colonial project just because colonialism isn’t as popular as it once was.

  2. Ralph Stone

    Why would any respectable law review choose to publish what is in essence nothing more than a biased review of anti-Zionist literature? Of the 400+ footnotes, fewer than ten even cite anything even remotely resembling “law” – no cases are cited (save a reference to a recent ICJ order), no statutes are cited, there are fewer than ten law review articles cited (and that is after giving latitude to the term “law review”). What passes for scholarship in the social sciences, and apparently now in law as well? Highbrow phrases, hundreds of footnotes practically overtaking the text, that’s all one might need to be celebrated as a brilliant and well-researched work.

    Emblematic of the dishonesty of the article is another critical omission above some of the others you identify. Despite the timing of its publication and obvious relationship to the subject, nowhere does the author mention October 7.

    The article has garnered far more attention than it deserves largely because of the “secretive” and “unusual” process leading to its publication. I take this to be code for a process that excluded the critical eyes of Jews. A Columbia tradition! If you are going to rewrite history in the name of “social justice,” this is how it is done.

    1. I don’t disagree with you, Ralph, about the problems with the paper but I think the answer is not to say, “it’s bad, don’t pay attention to it,” but to have someone ( not me!) spend a year rebutting it in detail.

    2. Chris Perez

      Not all Jews are in favor of genocidal settler colonial projects. And all of these articles are biased, you just don’t notice it unless it happens to be against the status quo.

  3. Mark

    I’m still struggling with how Nabka is a legal as opposed to a religious or political concept. If it isn’t, it seems strange that it would be published in the Columbia Law Review? I would really like to see arguments why or why not Nabka it is workable as a coherent and legal concept that can be applied in a variety of situations as all laws must be.

    1. That’s exactly right. My post doesn’t even address the legal aspects of the article, because as Ralph pointed out in his comment, it’s not really a legal paper.

  4. Daniel

    I’ve read the “article” . The last thing you can say about it is that it is an “academic” article. It is more of a one-side ideologic manifesto from the start to the end. If the author wnat to establish a new term in international law, he should have begin with a theortical basis which deals with the question how to make a new legal term – i.e genoside, a crime against huminity. But he provides no such basis. Instead he wrote a long one-sided political article, in which he base his arguments on what he holds these truths [facts] to be self-evident.
    This article is a shame for HLS where the author is learning for his jds dgree.

    1. I agree with you that it’s not really a legal argument. I do think the right response is to have someone write a detailed rebuttal in a prestige journal rather than to say, “this is absurd, no one will take it seriously.” That was the mistake people made with “settler-colonialism.”

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