If you want to spend the next few days reading something truly transformative from an intellectual standpoint, make sure to check out Rabea Eghbariah’s article [link on Columbia Law Review (CLR)] that wasn’t just censored by one Ivy League institution (Harvard Law School), but TWO! (Columbia Law School). That’s definitely a cool line to have on your resume. Of course, the “silencing-the-article” strategy would’ve worked if this was 1948, 1956, 1967, 1973, 1982, and countless other conflict-filled dates until about the early 2000s, but 2024 had the exact opposite effect. The article went viral.
In typical Ivy League, one-uppish fashion, Columbia Law Review, one of the most revered legal journals in the western world, went a step further than Harvard by authoritatively taking down it’s law review website—complete with all archived articles since 1901. It’s almost as if the two institutions were competing for donor funds by trying to outshine each other in appeasing a foreign military state, even if it meant looking completely foolish in the process.
There’s one final point I want to make before highlighting my favorite notes from Mr. Eghbariah’s article. It’s highly ironic that these institutions known for—at least on paper & marketing videos to prospective students—aspiring to instill intellectual curiosity in the minds of its high-paying students back themselves into a corner and take steps that accomplish the exact opposite. They are shutting down university journal websites, censoring articles, canceling hard-earned valedictorian speeches (Asna Tabassum @ USC comes to mind), and forcefully tearing apart free speech student encampments fighting to expose academic complicity in a live-streamed genocide. This gets said over and over again, but it’s worth repeating: the more they try to silence voices for justice and humanity, the louder these voices will grow—especially in the digital world with countless million news outlets and unfiltered social media channels.
Now let’s turn our attention to Mr. Eghbariah’s article, “Toward Nakba as a Legal Concept.”
Don’t be intimidated by the scholarly publication in which the article appears because the true beauty of this article is that it is a highly readable. In all honesty, if the fearful people on the board of the Columbia Law Review didn’t attempt to censor the article, I probably would’ve missed it. If allow someone living under an intellectual rock for the past 50 years to read the article, they would not only learn the A-Zs about the Palestine-Israel conflict, but also get exposed to a long list of highly reputable thinkers from every conceivable camp—whether they happen to be American, Palestinian, Israeli, or a mixture! This is an article where you’ll find yourself closely reading each and every footnote and taking a slow walk through the mind of Rabea Eghbariah and his editors. Apparently it took around five months to edit because I’m sure Mr. Eghbariah knew it had to be perfect, but apparently even perfection didn’t suffice for the law review’s board of directors.
Side note: Who exactly were the fearful people on the CLR board?! Philip Weiss @ Mondoweiss did some digging:
This story [of shutting down CLR] reminds us that the U.S. establishment is firmly and blindly pro-Israel. The board that squashed the students included operators of the highest order: professor Gillian Metzger, who also serves in the Justice Department’s Office of Legal Counsel; Justice Department senior counsel Lewis Yelin; and Ginger Anders, a former assistant to the U.S. Solicitor General.
We used to call people like this the ruling class. These high appointees understand what American values are, and today American values are standing by Israel even as it massacres thousands of children. These values surely have to do with the importance of Zionist donors to Joe Biden and universities, but they go beyond that to the makeup of the U.S. establishment. Pro-Israel voices — including Jewish Zionists — are a significant element of corporate culture. They are a generational force. Young progressives and young Jews are rejecting Israel. But they aren’t in the power structure.
The article sets the stage for what’s to come with a very prescient quote by the great Edward Said: “This is a unique colonialism that we’ve been subjected to where they have no use for us. The best Palestinian for them is either dead or gone. It’s not that they want to exploit us, or that they need to keep us there in the way of Algeria or South Africa as a subclass.”
Eghbariah hints to readers that the Palestinian experience is different. Experts will try to categorize it as a mixture of genocide, apartheid, ethic cleansing, but the case is slowly made over the course of the article that the Palestinian experience is so different that it deserves its own generalized legal classification. When readers consider its inherent differences including a foundational traumatic displacement in 1948 commonly referred to as al-Nakba, subsequent ethnic cleansing conflicts via mini-wars, hyper fragmented/fractured diaspora aided by a slow-motion ethnic cleansing and a well-funded apartheid state that comes with multitude of identification cards, walled areas known by letters and numbers—it’s simply a Nakba and the Israel state in this context is known as a Nakba regime—or, one that commits acts of Nakba on its inhabitants.
Early in the article, Eghbariah introduces the different forms of Nakba that he will use:
“This Article uses the term “Nakba” in three distinct ways: “1948 Nakba” to refer to the foundational event(s) of the Palestinian Nakba; “ongoing Nakba” to refer to the continuous Palestinian reality since 1948; and “Nakba,” without a definite article, to refer to the concept of Nakba more broadly, including in law. Since this Article focuses on the concept of Nakba as applied to Palestine, it capitalizes the term in all instances.”
Footnote 19, Pg 895, Columbia Law Review. May, 2024
Toward the end of the article, he writes:
“In a nutshell, the foundational violence of the 1948 Nakba has not only dispossessed and displaced Palestinians but also fractured Palestinian society and put in place a new regime that is committed to denying Palestinian self-determination in favor of the settler society. The structure of this regime overlaps with apartheid and is best defined by the concept of legal fragmentation, namely, the stratification and classification of Palestinians into distinctive legal statuses that correspond with different forms of violence and divergent degrees of legal privilege.”
Page 964-5, Columbia Law Review. May, 2024
Over the course of the article, Eghbariah uses all types of sources, even quoting Netanyahu in Haaretz in one instance to make the point that different Palestinians are exposed to different forms of governance depending on Israeli state’s needs. Here’s an example from early in the article:
The intense contradictions that underpin the Israeli desire to acquire the land but not its Palestinian population have increasingly produced fragmentation as a structure of governance. Israeli Prime Minister Benjamin Netanyahu encapsulated this logic by asserting in 2019 that “whoever wants to prevent a Palestinian state must support Hamas and the transfer of money to Hamas . . . . This is part of our strategy—to divide and distinguish the Palestinians in Gaza from the Palestinians in Judea and Samaria.
Footnote 16, Pg 894, Columbia Law Review. May, 2024
I want to end with one final quote about how Eghbariah’s took the path of generalizing Nakba’s legal framework in order allow future scholars to attach a legal framework to other slow-moving atrocities. And naturally, the creation of this legal framework led him to briefly discuss the criminalization factors that might follow. He writes:
“Generalizing a legal framework based on the Palestinian experience may prove applicable to other contexts as well. Nakba may be thought of as an aggregation or continuum of different crimes, some of which are recognized in international law and others which are not. On an abstract level, Nakba must be able to account for a wide spectrum of injustices, including indefinite denial of self-determination, illegal and nonconsensual partitioning of a territory by force, conquest and ethnic cleansing, demographic engineering of a population, denial of refugees’ right of return, indefinite military occupation, settlement of an occupied territory, annexation of an occupied territory, implementation of apartheid, and enactment of genocidal violence. On a material level, each act of killing, maiming, imprisoning, shelling, expelling, or otherwise subordinating can be understood as an act of Nakba.”
Pg 965, Columbia Law Review. May, 2024
On the criminalization front, it’s not so easy due to the systemic odds being stacked up against Nakba victims (i.e. IDF is allowed to blow up all Gaza universities, neighborhoods and everything else that sustains life and culture with complete impunity), but Eghbariah’s notes that the “there is value in the process of legal recognition itself.” He writes:
Criminalization may seem to be a natural byproduct of codifying Nakba as a legal concept. It is crucial, however, to remember that there is more to law than the act of criminalization. In fact, criminal law approaches have often proven ineffective in breaking down political structures of violence and domination. The criminalization of Nakba may still be useful insofar as it sets a legal frame of reference, advances an understanding of the violence at play, recognizes Palestine as its paradigm case, and highlights the international community’s disapprobation of its persistence. It is beyond the scope of this Article to articulate a doctrine of the crime of Nakba. Nevertheless, the practice of making new legal categories is not only constructive of legal doctrine but often contributes to the formation and development of norms and narrative structures. Put simply, there is value in the process of legal recognition itself.
Pg 965-6, Columbia Law Review. May, 2024
Of course, I could go on and on with these golden nuggets from my Kindle highlights, but I’ll save you the time. All I can say is put in the time and chew on Rabea Eghbariah’s well-researched words because it will open many intellectual doors containing hard-earned truths—and I’ll end this with his own words: “Only once we realize these hard truths, Palestine will set us all free.”
Faisaling.com 
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