“The Law Cannot Let Itself See the Nakba”

In October 2023, the Harvard Law Review (HLR) reached out to Rabea Eghbariah to ask if he would write a short piece for the journal’s blog. Eghbariah is a Palestinian legal scholar finishing his doctorate at Harvard Law School, and a human rights lawyer who has brought a number of Palestinian rights cases before the Israeli Supreme Court. Eghbariah’s essay, titled “The Ongoing Nakba: Towards a Legal Framework for Palestine,” would have been the first by a Palestinian scholar to be published by HLR. But after being edited, fact-checked, copy-edited, and approved, the piece—which argued that the genocide in Gaza was a manifestation of the Nakba—was blocked by an unprecedented emergency vote of HLR’s editors. Eghbariah was informed that the internal discussion revolved not around the essay’s quality or content, but around editors’ fears of causing offense, risking their professional futures, or potentially being doxxed and harassed—a textbook unfolding of the Palestine exception to free speech. (Eghbariah published the piece in The Nation instead.) Not long afterward, the editors of the Columbia Law Review (CLR) contacted Eghbariah: They wanted to commission an expanded version of the piece. Eghbariah worked intensely with them for five months, producing a 106-page article that argued for the development of the Nakba into a legal concept. But recent history repeated itself, and within hours of Eghbariah’s article being posted online, CLR’s board of directors took the entire website down. The website, as well as Eghbariah’s piece, was only restored after the student editors of the journal threatened to go on strike. Eghbariah’s article is currently online, and is the first contribution by a Palestinian scholar to appear in CLR.

Across the two pieces, Eghbariah poses a straightforward question to the legal community: If the name of the crime Israel is committing in Gaza today is genocide, then what do we call the crime that Zionism has been committing against the Palestinians for the past 100 years? International law has lacked the language to accurately describe that project of erasure, Eghbariah argues, but Palestinians have long had a precise name for it: the Nakba. In his HLR piece, Eghbariah suggests that the international community adopt Palestinians’ language for their experience of Zionism, and in the expanded CLR article, he proposes that we speak about the Nakba in two overlapping ways: as the event that displaced over 750,000 Palestinians from their homes between 1947-1949, and as the structure of oppression that Palestinians have been subject to ever since. Eghbariah also advances the idea of “Nakba,” without a definite article, as a common noun that could be used along the lines of “apartheid” or “genocide” to refer to a mode of group domination founded in displacement, continued through fragmentation, and aimed at the denial of self-determination. I had the opportunity to speak with Eghbariah about the Nakba as the material truth of Zionism, the history of Palestinians’ use of the term, and the power of inventing new concepts and borrowing existing ones to capture the distinctiveness of Palestinian subjugation. Our conversation has been edited for length and clarity.

Joshua Abramson Cohen: How are you? What have the past few weeks been like?

Rabea Eghbariah: This time [with the Columbia Law Review], I wasn’t even angry. It was more, Look at the ridiculousness. Look at the moral and intellectual bankruptcy of these institutions. You can’t make this up. Nuking the entire website because of an article about the Nakba? It perfectly illustrated the culture of Nakba denialism.

JAC: Your article makes a case for legally recognizing the Nakba—and not just as something that happened, but something that’s happening. Can you talk about the origins of your argument?

RE: The argument is the product of a community. All of us, everybody in Palestine, uses the language of the ongoing Nakba to make sense of our lives. It’s rooted in our experience.

The article originates in my dissertation, which I’ve been working on for the past three or four years. In it, I try to understand the Palestinian condition under Zionism using the framework of legal fragmentation. Israel produces these different legal regimes, these different modes of organizing and subordinating Palestinians: citizens of Israel, residents of East Jerusalem, residents of the West Bank, residents of Gaza, and refugees. These fragments tend to produce further fragments, so the reality ends up being a kind of fractal. So, in the West Bank, for example, you have Area A, Area B, Area C, and so on. At other times the fragments are not geographical. Take the Druze, whom the State of Israel classifies as legally distinct from other Palestinians living within the ’48 territories, the so-called “Arab citizens” (people like me, whom the regime never recognizes as Palestinian).

So this was the project I was working on, but then October came. When HLR solicited the piece from me that month, I was in a state of shock. My client Attiya Nabaheen had just been killed with his entire family by an Israeli airstrike. And the genocide discourse was quickly becoming central to making sense of the carnage that we were starting to witness. Scholars of genocide studies, UN experts, human rights organizations—every day, it felt like, a different authority came out and said, What Israel is doing in Gaza needs to be understood in terms of genocide. Top Israeli officials told us their genocidal intentions, and the material reality corroborated them: In one of the most densely populated places in the world, 2.3 million people were being trapped, displaced, starved, and deprived of water while facing endless bombardment.

But as the carnage went on, I felt the need to relate what was happening to the Palestinian condition more broadly. How could we situate the genocide in Gaza within Zionism’s century-long effort to erase Palestinians as a group? That’s when the framework of legal fragmentation that I had been working with gave way to the larger framework of the ongoing Nakba. After all, while fragmentation is the structure of Palestinian life under Zionism, it is rooted in the foundational violence of the Nakba: the violence of displacement, with an overarching purpose of denying Palestinian self-determination. So where Zionism attempts to silo our experiences and histories, the framework of the Nakba enables us to capture the totality of the Palestinian condition. There have always been attempts to talk about the Gaza question instead of the Palestine question, to exceptionalize Gaza. But it is one question. What we are witnessing right now is a genocidal variant of the Nakba.

JAC: The precision of the word “Nakba” is central to your argument. In this spirit, you cite a line from the Lebanese novelist Elias Khoury reflecting on the first uses of the word to describe the imposition of the State of Israel: “When a word becomes an untranslatable proper name, we have to try to understand the wisdom of the language.” Can you say more about the meanings and uses of “Nakba”? How did it become untranslatable?

RE: As the scholar of rhetoric Samera Esmeir observes, the Palestinian vocabulary includes a number of words that describe the foundational violence of 1948, including “iqtila” (uprooting), “tahjeer” (displacement), and “tashrid” (expulsion or un-homing). “Al-nakba” includes all of these experiences—it’s the umbrella term. And it has the definite article: the Nakba, or the catastrophe. In Arab thought after 1948, this is the term that quickly becomes synonymous with the violent imposition of the State of Israel in Palestine. In the line you mention, Khoury is rereading the Syrian intellectual Constantine Zurayk’s 1948 book Ma’ana al-Nakba (The Meaning of the Nakba), which is usually understood as the text that coins the definitively Palestinian meaning of the word. Zurayk gave language to a pattern of erasure that was already in place before that point. As the sociologist Areej Sabbagh-Khoury shows, by 1948, some 70 Palestinian villages had already been depopulated and dispossessed by Zionist land-acquisition organizations—what she calls colonialism by purchase. So in a sense, the Nakba was already ongoing, and 1948 just gave us a name for it.

There are two ways to talk about the Nakba after 1948. One is Edward Said’s way: the Nakba as a kind of explosion. Zurayk also talks about the Nakba as a single, monumental event. But both Said and Zurayk plant the seed for the concept of the ongoing Nakba. Said says that the effects of the explosion can be felt in the present. And in 1967, Zurayk makes a point of refusing the term “Naksa,” which the journalist and editor Mohammad Hassanein Heykal—a close confidant of [Egyptian leader] Gamal Abdel Nasser—used in order to describe the “setback” of that year. Zurayk essentially says, No, this is not merely a setback—this is Nakba again.

So, the word “Nakba” originally referred to an event—a spectacular rupture. But then it happens again, and again, and the word takes on a life of its own. Over the course of the past 76 years, as the original break has morphed into a structure of dispossession, domination, and fragmentation, the word has come to signify for Palestinians the denial of our existence and our political will. This points to the second way of talking about the Nakba: the Nakba as a continuous process, as an accumulation of overlapping histories of violence. We could call this the Darwishian reading, following the Palestinian poet Mahmoud Darwish, who once suggested that the Nakba is “an extended present that promises to continue into the future.” Palestinians do not look back at the Nakba as a distant crime to be uncovered, Darwish argued—this was on the 53rd anniversary of the Nakba, in 2001—because we live the Nakba in the here and now. From this perspective, every act of killing, every act of administrative detention, is an act of Nakba.

JAC: Your analysis extends to the meaning of the term “Zionism,” too. You argue that whatever the word may have meant before 1948, in the decades since, Zionism has come to be synonymous with the Nakba. This feels like an especially sharp point in the face of scholarly attempts to legitimate Zionism’s emotional connotations for Zionists, and the related surge in efforts to locate Zionism’s essence in an original dream of Jewish liberation. You’re saying, Look, the dream has been realized. We know what Zionism looks like in practice.

RE: We can think about it like this: Just as Nazi ideology produced the Holocaust and Afrikaner nationalism generated apartheid, so, too, did Zionism birth the Nakba. From there, Zionism and the Nakba have come into existence hand in hand, with the destruction of Palestinian life making the Jewish state a reality. You don’t get to identify as a Zionist in a vacuum.

JAC: In advancing these arguments, you ground yourself in Palestinians’ ordinary and longstanding language for their experience, assuming the tradition of narrating Zionism from the standpoint of its victims. Many of the voices you draw on in order to theorize the Nakba in legal terms come from outside legal theory—from literary scholars, novelists, poets, and others who are interested in the powers of language. Can you talk about the place of naming and narrative in making the Nakba into a legal concept?

RE: Naming injustice is the first step toward claiming justice: In order to begin to undo the Nakba, we have to make the law call it what it is. But this means recognizing that legal concepts do not exist in a void—narratives, shared stories, and shared norms give those concepts meaning. In other words, when we say that the state produces the law, that’s only one part of the story. Communities on the ground also produce law—counter-hegemonic law.

Take the discourse of genocide. Who has the authority to say that Israel is committing genocide in Gaza? Does it really only become genocide once the International Court of Justice (ICJ) says so? No. Law takes on meaning within narratives, within movements, within politics. If you had said, pre-October, that South Africa was going to file a genocide case against Israel with the ICJ, it would have made no sense legally, because there was no global narrative. The movement gave the law its meaning. The bottom-up articulations came before the ICJ. This is what [the Palestinian human rights lawyer] Noura Erakat always says: The law must be put in the service of our broader liberation movement.

The need to narrate the law from within Palestinian experience also has to do with analogies—or, with the way analogies have been used against Palestinians. Every legal concept has its original, paradigmatic case: The Holocaust epitomizes genocide, while South African segregation epitomizes apartheid. When we name genocide or apartheid in Palestine, we are always comparing our reality to these original cases. Things never exactly match. What we have seen in Palestine, time and time again, is that the inevitable differences generated by legal analogies make our own case vulnerable to hijacking by liberal interpretations. Take apartheid. Within the human rights community, from Human Rights Watch to Amnesty International to B’Tselem, they all agree that Israel has created an apartheid system. (Palestinians, of course, were saying this long before any of these groups were.) But these groups only agree to call it apartheid—they do not at all agree what apartheid means in the case of Palestine, or even where in Palestine apartheid is being committed. We get caught up in an endless debate about the proper application of the analogy, talking about South Africa when we should be talking about Palestine. These conversations make us see apartheid in Palestine as a variation on South African apartheid when the truth is that apartheid in Palestine is a manifestation of Zionism’s own paradigmatic crime. The upshot is that a certain kind of liberal can recognize apartheid in Palestine while still denying the Nakba.

JAC: This becomes tricky because liberal Zionists often hold up Israel’s historical specificity in order to dismiss criticism, insisting that borrowed categories like “settler colonialism,” “apartheid,” and “ethnic cleansing” do not fit Israel’s unique reality. The claim is obviously in bad faith: Besides creating concepts, borrowing categories is one of the main ways that we think. Still, how would you distinguish your insistence on historical distinctiveness from arguments like these?

RE: Arguments like that work precisely by leaving Israel’s “unique reality” undefined. It is just this unnamable abstraction, obscured by so much nuance.

The Nakba is that unique reality. In certain contexts it manifests as apartheid, in others, as ethnic cleansing. As for settler colonialism: The Nakba is a specific modality of settler colonialism. As a general category, settler colonialism can point us to the family of colonial projects to which the Zionist project belongs, but it can’t reveal the distinctiveness of Zionism’s violence. Settler colonialism gives us the settler/native binary, for example—but Israel has created five different legal classifications in order to subordinate the Palestinian native. As an organizing framework, moreover, settler colonialism’s logic of elimination can keep us from seeing the ways in which Zionism’s settler colonial project is failing. Palestinians have not been eliminated. We live in the space between elimination and liberation. Or to put it in terms of my own organizing framework: We do not only live in fragmentation, but in the space between fragmentation and unity. We persist between the river and the sea, and we have maintained a very real imagination of ourselves as a whole people. (We saw this imaginary whole realized for a moment in Sheikh Jarrah, in 2021, with the Unity Intifada.) The framework of the ongoing Nakba allows us to think from within the space that Palestinians actually inhabit.

JAC: Over the course of the past months, the unthinkable carnage in Gaza has caused the human rights community to experience a kind of crisis of faith in international law. Some writers have suggested that the international order has revealed itself to be fundamentally antagonistic to Palestinian liberation. You make a similar point in your article, writing: “Palestine remains the most vivid manifestation of the colonial ordering that the international community purports to have transcended.” But then you go on: “Precisely because of this feature, undoing the Nakba offers an opportunity to reconstruct the international legal structure and restore faith in the project of international law, or indeed, in the very notion of universal norms.” Can you say more about what you mean by “restoring faith”?

RE: Most days I look at the images from Gaza on my phone, and I think, What international law? How could the law possibly free Palestinians when it can’t even save us from genocide?

International law also deeply limits our ability to see the Palestinian reality. Before I wrote the CLR article, I started writing a different piece that I imagined calling “Za’atar and War Crimes.” It had to do with international humanitarian law (IHL) and all the brutality that it fails to capture. At the end of 2023, there were all these reports about the Israeli use of starvation in Gaza, which is a war crime. At the same time, there were testimonies coming out of Gaza—the journalist Hind Khoudary had one, where she said, “Today I was intensely hungry. The only thing I could find to eat was za’atar.” So I started looking at Gaza through the lens of za’atar. The story took me beyond the current genocide: to the systemic caloric restriction that the Israeli regime imposed on Gazans in 2010, and to cases of severe malnutrition caused by Israel’s blockade in the first decade of the 2000s. During this time, too, Palestinians resorted to za’atar in order to survive. Looking at za’atar also brought me to the criminalization of Palestinian foraging, which has been ongoing since 1977 and has resulted in the prosecution and punishment of thousands of Palestinians simply for picking a wild herb. This raises the question: When does something become a war crime? Our legal imagination fails to capture the slow violence of the ongoing Nakba, which is what gives rise to Israel’s more spectacular war crimes.

So, when I talk about restoring faith in international law, I do not mean preserving faith in the system as it currently exists. I do not mean a naive faith in enforcement either. I mean reimagining what international law can be. If nothing else, the whole series of events surrounding the censorship of my articles made it extremely clear that in its current form, the law cannot let itself see the Nakba. But the law can be forced to absorb new realities and change shape. In this sense, the restorative potential of the Nakba as a legal concept lies in the very process of recognition.

JAC: Your article ends with a vision for undoing the Nakba. Recognition will set the process in motion, you imagine. But from there, a series of material remedies must follow, including the implementation of the right of return and a combination of reparations and redistribution. What is the risk of recognition without the rest?

RE: I mean, look—the possibility of recognition decoupled from material consequences is a real danger. We can win the narrative. But if the Nakba acquires its place in the international imagination and things stop there, the narrative could start to work against us. There are three futures: one of perpetual Nakba, one in which we undo the Nakba, and one in which we think we have undone the Nakba when we haven’t. In this last future, the ongoing Nakba could simply morph into another, quieter form—a kind of “new Nakba,” repackaged along the lines of the new Jim Crow, or the new apartheid. One version might entail the translation of the ongoing Nakba from a structure openly imposed by the state into a structure entirely perpetuated by private interests. Another could turn on the confusion between statehood and liberation that has been enforced by the so-called peace process. Imagine a future in which Area A of the West Bank became the Palestinian state. The world would declare the Palestinian question resolved while Palestinians as a whole remained displaced, fragmented, and dispossessed, and thus denied their greater right to self-determination. We could have a state while still living in the Nakba.

In my article, I start with the fact that Zionism’s organizing crime against the Palestinians is distinct enough to demand its own name. But recognition is not a one-off act. It requires constant attention and reckoning. My hope is that ongoingly recognizing the Nakba will be disturbing enough to the system that all of us have a little more room to think and act differently.