[The piece was nearing publication when the journal decided
against publishing it. You can read the article here.]
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THE HARVARD LAW REVIEW REFUSED TO RUN THIS PIECE ABOUT GENOCIDE IN
GAZA  
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Rabea Eghbariah
November 21, 2023
The Nation
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_ The piece was nearing publication when the journal decided against
publishing it. You can read the article here. _

Harvard students protest for Palestine during the Yale-Harvard
football game at the Yale Bowl in New Haven, CT November 18, 2023.,
Williams Paul / Icon Sportswire via AP

 

On Saturday, the board of the _Harvard Law Review_ voted not to
publish “The Ongoing Nakba: Towards a Legal Framework for
Palestine,” a piece by Rabea Eghbariah, a human rights attorney
completing his doctoral studies at Harvard Law School. The vote
followed what an editor at the law review_ _described in an e-mail to
Eghbariah as “an unprecedented decision” by the leadership of
the _Harvard Law Review_ to prevent the piece’s publication.

For a full account of how the _Harvard Law Review_ came to revoke
publication of “The Ongoing Nakba: Towards a Legal Framework for
Palestine,” read _The Intercept’s _investigation here
[[link removed]].

Eghbariah told _The Nation_ that the piece, which was intended for
the _HLR_ Blog, had been solicited by two of the journal’s online
editors. It would have been the first piece written by a Palestinian
scholar for the law review. The piece went through several rounds of
edits, but before it was set to be published, the president stepped
in. “The discussion did not involve any substantive or technical
aspects of your piece,” online editor Tascha Shahriari-Parsa, wrote
Eghbariah in an e-mail shared with _The Nation_. “Rather, the
discussion revolved around concerns about editors who might oppose or
be offended by the piece, as well as concerns that the piece might
provoke a reaction from members of the public who might in turn
harass, dox, or otherwise attempt to intimidate our editors, staff,
and HLR leadership.”

On Saturday, following several days of debate and a nearly six-hour
meeting, the _Harvard Law Review_’s full editorial body came
together to vote on whether to publish the article. Sixty-three
percent voted against publication. In an e-mail to
Egbariah, _HLR_ President Apsara Iyer wrote, “While this decision
may reflect several factors specific to individual editors, it was not
based on your identity or viewpoint.”

In a statement that was shared with _The Nation_, a group of
25 _HLR_ editors expressed their concerns about the decision. “At
a time when the Law Review was facing a public intimidation and
harassment campaign, the journal’s leadership intervened to stop
publication,” they wrote. “The body of editors—none of whom are
Palestinian—voted to sustain that decision. We are unaware of any
other solicited piece that has been revoked by the Law Review in this
way. “

When asked for comment, the leadership of the _Harvard Law
Review_ referred _The Nation_ to a message posted
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journal’s website. “Like every academic journal, the _Harvard Law
Review _has rigorous editorial processes governing how it solicits,
evaluates, and determines when and whether to publish a piece…”
the note began. ”Last week, the full body met and deliberated over
whether to publish a particular Blog piece that had been solicited by
two editors. A substantial majority voted not to proceed with
publication.”

Today, _The Nation_ is sharing the piece that the _Harvard Law
Review_ refused to run.

Genocide is a crime. It is a legal framework. It is unfolding in Gaza.
And yet, the inertia of legal academia, especially in the United
States, has been chilling. Clearly, it is much easier to dissect the
case law rather than navigate the reality of death. It is much easier
to consider genocide in the past tense rather than contend with it in
the present. Legal scholars tend to sharpen their pens after
the smell
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death has dissipated and moral clarity is no longer urgent.

Some may claim that the invocation of genocide, especially
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Gaza, is fraught
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But does one have to wait for a genocide to be successfully completed
to name it? This logic contributes to the politics
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When it comes to Gaza, there is a sense of moral hypocrisy
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undergirds Western epistemological approaches, one which mutes the
ability to name the violence inflicted upon Palestinians. But naming
injustice is crucial to claiming justice. If the international
community takes its crimes seriously, then the discussion about the
unfolding genocide in Gaza is not a matter of mere semantics.

The UN Genocide Convention defines
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crime of genocide as certain acts “committed with the intent to
destroy, in whole or in part, a national, ethnical, racial or
religious group, as such.” These acts include “killing members of
a protected group” or “causing serious bodily or mental harm” or
“deliberately inflicting on the group conditions of life calculated
to bring about its physical destruction in whole or in part.”

Numerous statements
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by top Israeli politicians affirm
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intentions. There is a forming consensus among leading scholars in the
field of genocide studies that “these statements could easily be
construed as indicating a genocidal intent,” as Omer Bartov, an
authority in the field, writes
[[link removed]].
More importantly, genocide is the material reality of Palestinians in
Gaza: an entrapped
[[link removed]], displaced
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[[link removed]], water-deprived
[[link removed]] population
of 2.3 million facing massive bombardments and a carnage in one of the
most densely populated areas in the world. Over 11,000 people have
already been killed
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That is one person out of every 200 people in Gaza. Tens of thousands
are injured
[[link removed].],
and over 45% of homes in Gaza have been destroyed
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The United Nations Secretary General said that Gaza is becoming a
“graveyard for children
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but a cessation of the carnage—a ceasefire—remains elusive.
Israel continues
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blatantly violate international law: dropping white phosphorus
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the sky, dispersing death in all directions
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shedding blood, shelling neighborhoods
[[link removed].],
striking schools
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and universities
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bombing churches
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wiping out families
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and ethnically cleansing
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entire region in both callous and systemic
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What do you call this?

The Center for Constitutional Rights issued
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thorough, 44-page, factual and legal analysis, asserting that “there
is a plausible and credible case that Israel is committing genocide
against the Palestinian population in Gaza.” Raz Segal, a historian
of the Holocaust and genocide studies, calls
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situation in Gaza “a textbook case of Genocide unfolding in front of
our eyes.” The inaugural chief prosecutor of the International
Criminal Court, Luis Moreno Ocampo, notes
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“Just the blockade of Gaza—just that—could be genocide under
Article 2(c) of the Genocide Convention, meaning they are creating
conditions to destroy a group.” A group of over 800 academics and
practitioners, including leading scholars in the fields of
international law and genocide studies, warn
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“a serious risk of genocide being committed in the Gaza Strip.” A
group of seven UN Special Rapporteurs has alerted
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the “risk of genocide against the Palestinian people”
and reiterated
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they “remain convinced that the Palestinian people are at grave risk
of genocide.” Thirty-six UN experts now call
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situation in Gaza “a genocide in the making.” How many
other authorities
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I cite? How many hyperlinks
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enough?

And yet, leading law schools and legal scholars in the United States
still fashion their silence as impartiality and their denial as
nuance. Is genocide really
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it is committed by Western allies against non-Western people?

This is the most important question that Palestine continues to pose
to the international legal order. Palestine brings to legal analysis
an unmasking force: It unveils and reminds us of the ongoing colonial
condition [[link removed]] that underpins
Western legal institutions. In Palestine, there are two categories:
mournable civilians and savage human-animals
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Palestine helps us rediscover that these categories remain racialized
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colonial lines in the 21st century: the first is reserved for
Israelis, the latter for Palestinians. As Isaac Herzog, Israel’s
supposed liberal President, asserts
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out there that is responsible. This rhetoric about civilians not
aware, not involved, it’s absolutely not true.”

Palestinians simply cannot
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They are innately guilty; potential “terrorists” to be
“neutralized” or, at best, “human shields
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obliterated as “collateral damage
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There is no number of Palestinian bodies that can move Western
governments and institutions to “unequivocally condemn” Israel,
let alone act in the present tense. When contrasted with
Jewish-Israeli life—the ultimate victims
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European genocidal ideologies—Palestinians stand no chance
at humanization
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Palestinians are rendered the contemporary “savages” of the
international legal order, and Palestine becomes the frontier where
the West redraws its discourse of civility and strips its domination
in the most material way. Palestine is where genocide can be performed
as a fight of “the civilized world
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against the “enemies of civilization itself.” Indeed, a fight
between the “children of light
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versus the “children of darkness.”

The genocidal war waged against the people of Gaza since Hamas’s
excruciating October 7th attacks against Israelis—attacks which
amount to war crimes
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been the deadliest
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colonial policies against Palestinians in decades. Some have long
ago analyzed
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policies in Palestine through the lens
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While the term genocide may have its own limitations to describe the
Palestinian past, the Palestinian present was clearly preceded by a
“politicide
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extermination of the Palestinian body politic in Palestine, namely,
the systematic eradication of the Palestinian ability to maintain an
organized political community as a group.

This process of erasure has spanned over a hundred years
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a combination of massacres, ethnic cleansing, dispossession, and the
fragmentation of the remaining Palestinians into distinctive legal
tiers with diverging material interests. Despite the partial success
of this politicide—and the continued prevention of a political body
that represents _all_ Palestinians—the Palestinian
political identity
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the besieged Gaza Strip, the occupied West Bank, Jerusalem, Israel’s
1948 territories, refugee camps, and diasporic communities,
Palestinian nationalism lives.

What do we call this condition? How do we name this collective
existence under a system of forced fragmentation and cruel domination?
The human rights community has largely adopted a combination
of _occupation_ and _apartheid_ to understand the situation in
Palestine. Apartheid is a crime. It is a legal framework. It is
committed in Palestine. And even though there is a consensus
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the human rights community that Israel is perpetrating apartheid,
the refusal
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Western governments to come to terms with this material reality of
Palestinians is revealing.

Once again, Palestine brings a special uncovering force to the
discourse. It reveals how otherwise credible institutions, such as
Amnesty International or Human Rights Watch, are no longer to be
trusted. It shows how facts become disputable
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a Trumpist fashion by liberals such as President Biden
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Palestine allows us to see the line that bifurcates the binaries (e.g.
trusted/untrusted) as much as it underscores the collapse of
dichotomies (e.g. democrat/republican or fact/claim). It is in this
liminal space that Palestine exists and continues to defy the
distinction itself. It is the exception
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rule and the subtext that is, in fact, the text: Palestine is the most
vivid manifestation of the colonial condition upheld in the 21st
century.

What do you call this ongoing colonial condition? Just as the
Holocaust introduced the term “Genocide” into the global and legal
consciousness, the South African experience brought “Apartheid”
into the global and legal lexicon. It is due to the work and sacrifice
of far too many lives that genocide and apartheid have globalized,
transcending these historical calamities. These terms became legal
frameworks, crimes enshrined in international law, with the hope that
their recognition will prevent their repetition. But in the process of
abstraction, globalization, and readaptation, something was lost. Is
it the affinity between the particular experience and the
universalized abstraction of the crime that makes Palestine resistant
to existing definitions?

Scholars have increasingly turned
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settler-colonialism as the lens through which we assess Palestine.
Settler-colonialism is a structure
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erasure where the settler displaces and replaces the native. And while
settler-colonialism, genocide, and apartheid are clearly not mutually
exclusive, their ability to capture the material reality of
Palestinians remains elusive. South Africa is a particular
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of settler-colonialism. So are Israel, the United States, Australia,
Canada, Algeria, and more. The framework of settler colonialism is
both useful and insufficient. It does not provide meaningful ways to
understand the nuance between these different historical processes and
does not necessitate a particular outcome. Some settler colonial cases
have been incredibly normalized at the expense of a completed
genocide. Others have led to radically different end solutions.
Palestine both fulfills and defies the settler-colonial condition.

We must consider Palestine through the iterations of Palestinians. If
the Holocaust is the paradigmatic case for the crime of genocide and
South Africa for that of apartheid, then the crime against the
Palestinian people must be called the Nakba.

The term Nakba, meaning “Catastrophe,” is often used to refer to
the making of the State of Israel in Palestine, a process that
entailed the ethnic cleansing
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over 750,000 Palestinians
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their homes and destroying 531 Palestinian villages between 1947 to
1949. But the Nakba has never
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it is a structure not an event. Put shortly, the Nakba is ongoing.

In its most abstract form, the Nakba is a structure that serves to
erase the group dynamic: the attempt to incapacitate the Palestinians
from exercising their political will as a group. It is the continuous
collusion of states and systems to exclude the Palestinians from
materializing their right to self-determination. In its most material
form, the Nakba is each Palestinian killed or injured, each
Palestinian imprisoned or otherwise subjugated, and each Palestinian
dispossessed or exiled.

The Nakba is both the material reality and the epistemic framework to
understand the crimes committed against the Palestinian people. And
these crimes—encapsulated in the framework of Nakba—are the result
of the political ideology of Zionism, an ideology that originated
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Europe in response to the notions of nationalism, colonialism, and
antisemitism.

As Edward Said reminds [[link removed]] us,
Zionism must be assessed from the standpoint of its victims, not its
beneficiaries. Zionism can be simultaneously understood as a national
movement for some [[link removed]] Jews and
a colonial project
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Palestinians. The making of Israel in Palestine took the form of
consolidating Jewish national life at the expense of shattering a
Palestinian one. For those displaced, misplaced, bombed, and
dispossessed, Zionism is never a story of Jewish emancipation; it is a
story of Palestinian subjugation.

What is distinctive about the Nakba is that it has extended through
the turn of the 21st century and evolved into a sophisticated system
of domination that has fragmented and reorganized Palestinians into
different legal categories, with each category subject to a
distinctive type of violence. Fragmentation thus became the legal
technology underlying the ongoing Nakba. The Nakba has encompassed
both apartheid and genocidal violence in a way that makes it fulfill
these legal definitions at various points in time while still evading
their particular historical frames.

Palestinians have named
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Nakba even in the face of persecution, erasure, and denial. This work
has to continue in the legal domain. Gaza has reminded us that the
Nakba is now. There are recurring
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Israeli politicians
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other public figures
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commit the crime of the Nakba, again. If Israeli politicians are
admitting the Nakba in order to perpetuate it, the time has come for
the world to also reckon with the Palestinian experience. The Nakba
must globalize for it to end.

We must imagine that one day there will be a recognized crime of
committing a Nakba, and a disapprobation of Zionism as an ideology
based on racial elimination
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The road to get there remains long and challenging, but we do not have
the privilege to relinquish any legal tools available to name the
crimes against the Palestinian people in the present and attempt to
stop them. The denial
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the genocide in Gaza is rooted in the denial
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the Nakba. And both must end, now.

_Rabea Eghbariah is a human rights attorney completing his doctoral
studies at Harvard Law School._

_Copyright c 2023 THE NATION. Reprinted with permission. May not be
reprinted without permission
[[link removed]].
Distributed by PARS International Corp
[[link removed]]. _

_Founded by abolitionists in 1865, The Nation has chronicled the
breadth and depth of political and cultural life, from the debut of
the telegraph to the rise of Twitter, serving as a critical,
independent, and progressive voice in American journalism._

_Please support progressive journalism. Get a digital subscription
[[link removed]] to
The Nation for just $24.95!_

* Israel
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* Palestine
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* Genocide
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* Harvard University
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* Gaza
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* zionism
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* Nakba
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