I recently read Rabea Eghbariah’s article ‘Towards Nakba as a legal concept‘, which I believe has been published by Columbia Law Review, despite a standoff around the article between the student editors, senior faculty, and probably donor interests. According to the footnotes, Eghbariah’s earlier text was also pulled by the Harvard Law Review. Well, of course I had to read it.
I do not generally support withdrawals of contentious articles from publication out of external political concerns. It is perhaps true that the article seems addressed to an insider echo chamber rather than those who might disagree with its position: many of its references are to like-minded posts and opinions, as if a mass of online noise would constitute a valid basis for international law. But that does not change the fact that the article did (at least hopefully did) pass the due peer review process prior to its publication. I understand that students at Columbia wanted this out, and they might as well have. It remains for members of the academic community to respond to the claims if they wish to disagree.
And now to the substance.
Overall, I found the article to be an appealing summary of the long history of suffering and marginalisation of the Palestinian people. It constitutes a strong call for international legal attention and concern for the legacy of the 1948 displacement of 750 000 Palestinians (which was “the” al-Nakba) and the subsequent Israeli-Palestinian violence that has repeated approximately every 20 years.
In its hundred-odd pages, the article proposes “an approach that considers Nakba as a legal concept capable of encompassing a phenomenon that has included genocide, apartheid, and military occupation but remains rooted in historically and analytically distinct foundation, structure, and purpose.” [p 895]. It also “proposes to distinguish apartheid, genocide, and Nakba as different, yet overlapping, modalities of crimes against humanity” [Abstract].
Although I have always found it difficult to understand the term “modalities” in legal scholarship, I gather that the article proposes that the particular Palestinian narrative of victimhood should be elevated from the status of an historical case event (to which legal rules may or may not apply) to the status of a legal concept, from which legal consequences – apparently international criminal legal consequences – can flow.
All in all, the Article does not manage to get far beyond this general thesis. Instead, it keeps returning to the need for a particular legal concept for the uniquely intersectional victimisation of the Palestinians, gathering together elements of genocide, apartheid and other crimes against humanity in the unique context of Zionism and modern-day settler colonialism. The fact that the findings do not go beyond the starting-point is a common feature in critical scholarship, so nothing scandalous here, but it does raise questions why it took 100 pages to present the argument.
The more specific problem with the thesis is that it fails to understand what international law is, or at least aspires to be. The prohibition of legislative adjudication is an essential aspect of the rule of law. Laws are meant to express general norms, whereas their application to individual disputes is the domain of courts and adjudicators. We have known the principle since from Roman Law to ius commune to common law to the customary international law to modern human rights law, and the foundations of Rule of Law till the present. We of course know (as did all those preceding generations) that the distinction between ‘law’ and ‘politics’ is indeterminate and subjective. But it is precisely because of that indeterminacy that the principle exists. In this light, the weakness of the proposal for Nakba as a legal concept is obvious: it comes across as an attempt to transform a particular political narrative into a binding legal outcome – a judgment without trial, judge or a hearing.
The immediate response is of course that Nakba would be a concept for formulating accusations, not a ‘judgment’ as such; any findings on actual instances of Nakba would belong to courts. However, this is in direct contradiction with the original purpose of highlighting the particular circumstances of Nakba. If Nakba can afterall be debated in terms of law, why should it be adopted as a ‘legal concept’? Here one is immediately reminded that other historical victim narratives – the Holocust, Shoah, Holodomor, Gulag, Sovietisation, the Nanjing massacre, the use of comfort women, etc – have not required the status of a legal principle to be appreciated and understood by international law. They are cases of well-recognised historical atrocities, not legal principles. The strong moral and legal condemnation of each flows from the multilayered and outrageous illegality of the events perpetrated in them, anchored in the rules and principles of international law, and not in their abstract canonisation as ‘legal concepts’ as such. This, in my view, is what Eghbariah’s article is actually aiming for; advancing the international recognition of the history and politics of the Palestinian experience.
A special word is in order on the term ‘Apartheid’, which arguably has found its way into the regular conceptual space of international law. The strongest case that can be made about Nakba as a legal concept would link it to Apartheid in status and role – quite conveniently so, as the traumatic history of apartheid is an integral part of South Africa’s activism against Israel’s occupation of the Palestinian territories. However, even here a distinction ultimately emerges: Apartheid was originally South Africa’s own formal term for their system of segregation. It was a label that the sovereign state suggested would explain and justify (at least in reference to its own sovereignty) its practices. Thus it was that the international community was able to take the concept of apartheid and clearly make it a focus of its criticism in the struggle to end racial segregation. By contrast, Nakba continues to be a Palestinian term not used to formally legalise their repression but precisely to condemn the expansion and occupation of Palestinian territories and life spheres by Israel. The distinction may sound like nitpicking at first, but upon further contemplation I am convinced that the difference is material. By applying the term Apartheid itself, South Africa as a sovereign state became bound by it and thus had to own its existence in the face of critiques.
In conclusion, the outcome is not that the events and legacies of the Nakba would be irrelevant to international law. It only means that they constitute a hard case – probably even the hardest case – on which we debate international law and what should flow from it. One need only have a look at the recent ICJ Advisory Opinion on the Occupied Palestinian Territories to observe that nothing in the present conceptual framework of international law prevents the ICJ and the legal community from engaging with the situation in Palestine. Whether one agrees with the Opinion or considers it falling short of justice, it is hard to get the impression that the Court was prevented from dealing with the matter because it had to deploy the languages of, say, occupation, self-determination and human rights, rather than a case-specific ‘nakba’. To the contrary, it is because the court was able to articulate the case using established legal terms – stating that Israeli occupation in Palestine is an illegal occupation, that the annexation of territories through force remains prohibited, et cetera – that we might find it credible in the first place. By using established law to assess the situation, it presents us with an attempt to apply international law to a particular case, instead of an infinite debate over the translation of casuistic nuances to the (dis)satisfaction of all aggrieved parties. Also the dissenting opinions are likewise communicated as interpretations of general legal rules on a particular case. Even with all its indeterminacies and limitations, the current approach remains far more convincing than the elevation of a particular victimisation narrative to the level of a general legal concept by academic fiat.