Palestinian Lawyer Censored for “Nakba as a Legal Concept” Article Speaks Out

The website of the Columbia Law Review was taken down by its board of directors on Monday after student editors refused a request from the board to halt the publication of an academic article written by Palestinian human rights lawyer Rabea Eghbariah titled “Toward Nakba as a Legal Concept.” The article argues for the Nakba to be developed as a unique legal framework, related to but distinct from other processes defined under modern international law, including apartheid and genocide. This is not the first time that Eghbariah’s legal scholarship has been censored by an Ivy League institution. The Harvard Law Review last year refused to publish a similar, shorter article it had solicited from Eghbariah even after it was initially accepted, fully edited and fact-checked. Eghbariah calls the abrupt rejection of his work “offensive,” “unprofessional” and “discriminatory,” and says “it is really unfortunate to see how this is playing out and the extent to which the board of directors is willing to go to shut down and silence Palestinian scholarship. … What are they afraid of? Of Palestinians narrating their own reality, speaking their own truth?”

TRANSCRIPT

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Juan González.

The website of the Columbia Law Review, one of the oldest and most prestigious legal journals in the country, has been down since Monday. At the time of this broadcast, ColumbiaLawReview.org shows a static homepage informing visitors that the site is “under maintenance.”

Well, that’s not exactly true. In a stunning move, the board of directors of the Columbia Law Review decided to take down the website after the publication’s student editors refused the board’s request to halt the publication of an academic article written by Palestinian human rights lawyer Rabea Eghbariah titled “Toward Nakba as a Legal Concept.” Student editors at the Columbia Law Review say they were pressured by the journal’s board of directors to halt publication of the piece. They refused the request and published the piece online Monday morning. In response, the board, which is made up of faculty and alumni from Columbia University’s law school, shut down the law review’s website.

After the website was taken down, student editors uploaded the article to a publicly accessible website, where it’s gone viral.

The article begins, “The law does not possess the language that we desperately need to accurately capture the totality of the Palestinian condition. From occupation to apartheid and genocide, the most commonly applied legal concepts rely on abstraction and analogy to reveal particular facets of subordination. This Article introduces Nakba as a legal concept to resolve this tension,” unquote.

The article is written by Rabea Eghbariah, a human rights lawyer completing his doctoral studies at Harvard Law School. Last November, the Harvard Law Review refused to publish a similar, shorter article it had solicited from Rabea, even after it was initially accepted, fully edited and fact-checked. In both cases, the article would have been the first time that either the Harvard Law Review or the Columbia Law Review had ever published a Palestinian legal scholar.

For more, we are joined by Rabea Eghbariah. He’s joining us here in our New York studio.

Welcome to Democracy Now!, Rabea.

RABEA EGHBARIAH: Thank you for having me, Amy.

AMY GOODMAN: It’s very important to have you with us. Talk about this experience and lay out what the Columbia Law Review board of directors did not want the public to see.

RABEA EGHBARIAH: Well, thank you, again, for having me.

Quite honestly, I still don’t fully know the details of what happened, because the Columbia Law Review’s board of directors, as of today, have not reached out to me personally and officially to inform me of their decision, which is quite telling of the sloppy and unprofessional manner with which they’re handling the situation, and quite offensive, to be frank about the matter.

I learned on Monday morning that the Columbia Law Review board of directors decided to shut down the entire Columbia Law Review website after my piece has been published as scheduled, after months of work and editing with the Columbia Law Review staff editors. I, you know, have been working about this piece for about five, six months now. And it is really unfortunate to see how this is playing out and how — to the extent to which the board of directors is willing to go to shut down and silence Palestinian scholarship.

I am only left, you know, with the question: What are they afraid of? What are they afraid of, of Palestinians narrating their own reality, speaking their own truth? Whose interests is the board of directors serving, going against their students, editors, going against its own staff, throwing them under the bus, manufacturing a controversy about some internal processes? For what sake? I think this is a question that everybody should have on their mind today.

JUAN GONZÁLEZ: And, Rabea, I wanted to ask you: How does it feel to have not one, but two of the most prestigious university, private university law schools in the United States, schools that teach constantly about Enlightenment thinking and the clash of ideas and the necessity for free speech, to have your article censored by two of these universities?

RABEA EGHBARIAH: Ironically, I think, by attempting to silence and censor my scholarship, these two law reviews have actually amplified it. And by attempting to erase the Nakba, they have, in fact, made it clearer. And still, despite this irony, it feels quite offensive and unprofessional and discriminatory to be faced with such repression. And I think this repression is really a testament to the Palestine exception to free speech and to academic freedom. And it’s a microcosm of, you know, the broader authoritarian repression we’ve been witnessing on American campuses in this country.

You know, I’ve been trying to actually talk about the Nakba, to articulate sensible legal claims about how to think about the reality of violence and domination in Palestine. But instead, I find myself now talking about my right to say these things, which is again an irony. I am not trying to talk about my right to say them. I’m trying to actually talk about the Nakba.

AMY GOODMAN: So, talk about it. Lay out your argument.

RABEA EGHBARIAH: So, my article is trying to grapple with a tension, with which we certainly are today talking about the genocide in Gaza, which I think is certainly the case. But, you know, for the last 76 years, Palestinians have been facing an ongoing reality of violence, dispossession, domination — and, in fact, a Nakba regime, a regime, a sophisticated regime of subordination, that fragments the Palestinian collective, that subordinates the Palestinian people and subjects them to a system of oppression, a brutal system of oppression.

The article is trying to encapsulate that Palestinian reality in its own framework, the framework of the — that Palestinians articulate naturally and organically, which is the Nakba. The Nakba refers to the catastrophe in 1948, the Palestinian catastrophe in 1948, the process of ethnic cleansing that, you know, dispossessed and expelled over 700,000 Palestinians from their homes and lands, destroyed over 530 villages, in order to establish the state of Israel. And I think we cannot talk about these processes or these concepts separately. They are mutually constitutive. And the reality of the Nakba, the reality of Palestinian oppression, has been ongoing ever since. For the last 76 years, Palestinians have been subjected to different types, kinds and forms of violence and oppression that denied them to exercise their political will, to their right to land, their right to nationality and their self-determination.

And the article is basically stemming from that point and says, well, we need to think about Palestine not only in analogy. It is not an attack on analogy and the discourses of genocide or apartheid. In fact, I do think the Nakba overlaps with both genocide and apartheid, and contained variants and episodes of genocide and apartheid throughout the last 76 years. But I do think that we need to acknowledge the Nakba for what it is, to talk about it for what it is, and not only reference it in analogy to other concepts.

JUAN GONZÁLEZ: And could you talk some, a little, about your own experience as a human rights attorney and dealing with issues of the Palestinian rights?

RABEA EGHBARIAH: Absolutely. I’ve been studying at Harvard Law School for my doctorate at the moment, in the last few years, but I’ve also been a human rights attorney, and a public defender previously, who litigated Palestinian rights, mainly at the Israeli Supreme Court. And my experience has really informed, I think, my scholarship and the view with which I approach the ongoing Nakba, because, you know, with each case that we, as lawyers, litigate, we are informed — in particular with regards to Palestinian rights, we are informed of different legal framework that applies, that reveals a different type of oppression, whether it is, you know, the rights of Palestinian citizens of Israel, whether it is the rights of Palestinians in East Jerusalem or in the West Bank, in Gaza.

These all come together, usually before the Israeli Supreme Court, to form some sort of a totality, a legal totality, that applies different legal concepts, you know, to govern each of these groups. And this is part of the article that I talk about, you know, this legal system of fragmentation, the stratification and classification of Palestinians into different legal tiers and different ID systems, that ultimately creates different realities of violence and domination, which complicate our ability to grasp this totality in one concept by analogy. That’s why I think we need to adopt, again, the Nakba as a legal framework, recognize it in law, theorize it in law and understand its root causes, understand that the political ideology of Zionism has produced this Nakba. This is also part of the article. These concepts, again, are mutually constitutive.

AMY GOODMAN: I wanted to end by asking you if you hold out hope that the Columbia Law Review website will be no longer be under construction and will print your piece. The Columbia Law Review’s board of directors told The Intercept, “We spoke to certain members of the student leadership to ask that they delay publication for a few days so that, at a minimum, the manuscript could be shared [with] all student editors, to provide them with a chance to read it and respond. Nevertheless, we learned this morning that the manuscript had been made public. In order to provide time for the Law Review to determine how to proceed, we have temporarily suspended [its] website.” And what it will mean if your article on the Nakba as a legal concept — will mean for law in this country?

RABEA EGHBARIAH: Well, I don’t have much faith or hope in these institutions, especially being subjected to this experience, not once, but twice. And the Harvard Law Review has not yet published or apologized for their discriminatory behavior and censorial behavior. And I’m afraid of this — I mean, perhaps they will republish the piece. I don’t fully know. Again, I have not been communicated with directly by the board of directors.

But I do want to note a few things. I’ve read these claims, you know, that the board circulated. I think they are a distraction. I think the board is really trying to distract from contending with the content of the article, you know, if the board has only to say about some internal processes, which are actually disputed by the editors at the Columbia Law Review. And really, I’m really grateful for these student editors, for their principled stands. You know, I wrote this piece, and it was a regular process. We edited it. I discussed it with many people. And I just want to say, if all what the board has to say is some controversy about the process internally, this tells me all I need to know.

AMY GOODMAN: But what it means for the Nakba to be accepted as a legal term?

RABEA EGHBARIAH: Well, I think we need to start talking about this. And this is not the end. This article is trying to open a conversation. I’m trying to say things that we need to contend with and we need to develop. And, you know, I think, as much as apartheid globalized and became a legal framework, an abstract legal framework, as much as genocide globalized following the Holocaust and became its own legal framework, I think there is time now to contend with the Nakba as its own legal framework and start to think about how to undo the Nakba.

This is where I conclude. I conclude with a quote from the South African delegation to the ICJ, where they recognize the Nakba in their opening statement, and they situate the claim for genocide, the reality of genocide, in fact, in the context of the ongoing Nakba. And I think I do want to underscore that, you know, undoing the Nakba is not resurrecting a past. It is reimagining a future. And to reimagine this future, we need to start talking about the Nakba.

AMY GOODMAN: Rabea Eghbariah, I want to thank you so much for being with us, human rights lawyer, completing his doctoral studies at Harvard Law School. His article, “Toward Nakba as a Legal Concept,” is not available on the Columbia Law Review website at the time of this broadcast, because it’s been shut down, the entire website. But the article is available online, and we will link to it.

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