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COLUMBIA LAW REVIEW
VOL. 124 MAY 2024 NO. 4
887
ARTICLES
TOWARD NAKBA AS A LEGAL CONCEPT
Rabea Eghbariah*
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. Meaning “Catastrophe” in Arabic, the term “al-Nakba”
(ةᚁالنك (is often used to refer to the ruinous process of establishing the State
of Israel in Palestine. But the Nakba has undergone a metamorphosis; it
has evolved from a historical calamity into a brutally sophisticated
structure of oppression. This ongoing Nakba includes episodes of
genocide and variants of apartheid but remains rooted in a historically
and analytically distinct foundation, structure, and purpose.
This Article therefore proposes to distinguish apartheid, genocide,
and Nakba as different, yet overlapping, modalities of crimes against
humanity. It first identifies Zionism as Nakba’s ideological counterpart
and insists on understanding these concepts as mutually constitutive.
Considering the limits of existing legal frameworks, this Article goes on
to analyze the legal anatomy of the ongoing Nakba. It positions
displacement as the Nakba’s foundational violence, fragmentation as its
structure, and the denial of self-determination as its purpose. Taken
together, these elements give substance to a concept in the making that
may prove useful in other contexts as well.
*. S.J.D. Candidate, Harvard Law School. This Article is dedicated to the victims and
survivors of the ongoing Nakba. I am indebted to the community that made this Article
possible, one that stretches between and beyond rivers and seas.
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INTRODUCTION ......................................................................................... 888
I. ZIONISM AS NAKBA .............................................................................. 901
A. From the Jewish Question to the Question of Palestine ........... 906
B. Colonialism and Expulsion in Zionist Thought ........................ 916
C. Zionism in Praxis ......................................................................... 925
II. NAKBA AND ITS LEGAL OTHERS .......................................................... 932
A. Occupation .................................................................................. 934
B. Apartheid ..................................................................................... 942
C. Genocide ..................................................................................... 950
III. NAKBA AS A LEGAL CONCEPT .............................................................. 956
A. A Brief Etymology of a Concept ................................................. 957
1. The Nakba as a Rupture ....................................................... 958
2. The Nakba as a Structure ..................................................... 960
B. A Legal Anatomy of the Ongoing Nakba ................................... 964
1. Foundation ........................................................................... 972
2. Structure ............................................................................... 978
3. Purpose ................................................................................. 986
CONCLUSION ............................................................................................. 989
“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.”
— Edward Said.1
INTRODUCTION
Legal theory still lacks an adequate analytical framework to describe
the reality of domination and violence in Palestine. The law does not
possess the language we desperately need to accurately capture the totality
of Palestinian subjugation. Instead, we resort to a dictionary of misnaming,
one that distorts our understanding of the problem, obfuscates its
inception, and misplaces its spatial and temporal coordinates. From
occupation to apartheid and genocide, the most commonly applied legal
concepts rely on abstraction and analogy, revealing particular facets of
subordination. While these concepts are certainly helpful, they risk distorting
the variegated structure behind the Palestinian reality, and their invocation
has often muted Palestinian articulations of their own experience.
There is a dire need for a new approach. This Article introduces
the concept of Nakba to legal discourse to encapsulate the ongoing
structure of subjugation in Palestine and derive a legal formulation of
1. Edward W. Said, The Pen and the Sword 54 (1994).
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2024] NAKBA AS A LEGAL CONCEPT 889
the Palestinian condition. Meaning “catastrophe” in Arabic, the term
“al-Nakba” (ةᚁالنك (is often used—as a proper noun, with a definite
article—to refer to the ruinous establishment of Israel in Palestine,2
a
chronicle of partition, conquest, and ethnic cleansing that forcibly
displaced more than 750,000 Palestinians from their ancestral homes and
depopulated hundreds of Palestinian villages between late 1947 and early
1949.3
But the Palestinian Catastrophe—the Nakba—remains an ongoing
and unrelenting ordeal, one that has never been resolved but rather
managed.
The Nakba has thus undergone a metamorphosis. The mid-twentieth
century mass expulsion of Palestinians from their homes by Zionist
paramilitary forces, and then by the army of the newly founded Israeli
state, transformed the Nakba into a tenacious system of Israeli domination;
a “Nakba regime” grounded in the destruction of Palestinian society and
the continuous denial of its right to self-determination. The spectacular
violence of conquest, dispossession, and displacement evolved into a
brutally sophisticated regime of oppression. Across Israel, the West Bank,
the Gaza Strip, Jerusalem, and refugee camps, Palestinians now occupy
distinctive and discounted coordinates in a convoluted matrix of law,
whereas Jewish Israelis maintain a singular and superior status, regardless
of territorial divisions.
2. See Lila Abu-Lughod & Ahmad H. Sa’di, Introduction: The Claims of Memory, in
Nakba: Palestine, 1948, and the Claims of Memory 1, 3 (Ahmad H. Sa’di & Lila Abu-Lughod
eds., 2007) [hereinafter Nakba: Palestine]; About the Nakba, United Nations: The Question
of Palestine, https://www.un.org/unispal/about-the-nakba/ [https://perma.cc/4PGF- NLYZ] (last visited Mar. 30, 2024).
3. See Ilan Pappé, The 1948 Ethnic Cleansing of Palestine, J. Palestine Stud., Autumn
2006, at 6, 7. As early as September 1949, the United Nations Conciliation Commission for
Palestine reported over 710,000 Palestinian refugees, excluding thousands of internally
displaced people. See Conciliation Comm’n for Palestine, Gen. Progress Rep. &
Supplementary Rep. on Its Fifth Session, Supp. No. 18 at app. 4, ¶ 15, U.N. Doc.
A/1367/Rev.1 (1951) (“The estimate of the statistical expert, which the Committee believes
to be as accurate as circumstances permit, indicates that the refugees from Israel-controlled
territory amount to approximately 711,000.”); see also Benny Morris, The Birth of the
Palestinian Refugee Problem Revisited 1 (2004) [hereinafter Morris, Palestinian Refugee
Problem] (noting that from November 1947 to October 1950 “an estimated 600,000 to
760,000 Palestinian Arabs departed their homes, moving to other parts of Palestine (i.e., the
West Bank and Gaza Strip) or abroad, primarily to Jordan, Syria and Lebanon”).
Historian Walid Khalidi’s seminal book All That Remains provided the first compre- hensive documentation of 418 villages that were depopulated and partly or largely destroyed
in 1948 and its aftermath. All That Remains (Walid Khalidi ed., 1992) [hereinafter Khalidi,
All That Remains]. Khalidi’s list of villages excludes, for example, the localities of Bedouin
communities in the Naqab; Khalidi estimates that between 70,000 and 100,000 Bedouin
refugees were uprooted. Id. at 582. Salman Abu-Sitta’s compendium The Atlas of Palestine
identified over one hundred additional villages, bringing unparalleled detail to the widely
cited figure of about 530 villages. See Salman H. Abu-Sitta, The Atlas of Palestine, 1917–
1966, at 106–19 (2010). For a brief etymology of the concept of Nakba and its usages, see
infra section III.A.
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890 COLUMBIA LAW REVIEW [Vol. 124:887
Palestinians, meanwhile, have never recovered4
from the material and
psychic reality of the 1948 Nakba: For every household there is a Nakba
story, for each refugee a stolen home.5
The conditions that the Nakba
4. The understanding of the Nakba as an ongoing condition precludes an entirely
post-hoc analysis. Palestinian and other mental health experts have long criticized existing
frameworks to assess the exposure to trauma in a prolonged reality of political violence and
domination. See, e.g., Olivia Goldhill, Palestine’s Head of Mental Health Services Says PTSD
Is a Western Concept, Quartz ( Jan. 13, 2019), https://qz.com/1521806/palestines-head-of- mental-health-services-says-ptsd-is-a-western-concept [https://perma.cc/6U22-Q8AN]
(“What is sick, the context or the person? In Palestine, we see many people whose
symptoms—unusual emotional reaction or a behaviors—are a normal reaction to a
pathogenic context . . . . There is no ‘post’ because the trauma is repetitive and ongoing
and continuous.” (internal quotation marks omitted) (quoting Dr. Samah Jabr, Chair of the
Mental Health Unit at the Palestinian Ministry of Health)); see also Brian K. Barber, Clea A.
McNeely, Eyad El Sarraj, Mahmoud Daher, Rita Giacaman, Cairo Arafat, William Barnes,
Mohammed Abu Mallouh, Mental Suffering in Protracted Political Conflict: Feeling Broken
or Destroyed, PLoS ONE, May 27, 2016, at 6 (“The construct for broken/destroyed was
identified upon close examination of the sub-codes for the political and health domains.”).
5. Oral history plays a crucial role in understanding the full scope of the Nakba.
Hundreds of Nakba testimonies are accessible online through the databases of the
Palestinian Oral History Archive at the American University of Beirut and the Zochrot
Collection of Nakba Testimonies. See Palestinian Oral History Archive, Am. Univ. Beirut,
https://libraries.aub.edu.lb/poha/ [https://perma.cc/ELZ7-AWWM] (last visited Mar. 30,
2024); Testimonies, Zochrot, https://www.zochrot.org/testimonies/all/en?Testimonies_
[https://perma.cc/S8CG-TNWB] (last visited Mar. 30, 2024). Some of these testimonies
have been transcribed and translated into English through the Nakba Archive. See About,
Nakba Archive, https://www.nakba-archive.org/ [https://perma.cc/CQB7-HA55] (last
visited Apr. 12, 2024).
Palestinians have also written important personal accounts of the Nakba. E.g., Fawaz
Turki, The Disinherited: Journal of a Palestinian Exile (1972); Sami Hadawi, Catastrophe
Overtakes the Palestinians: Memoirs, Part II, Jerusalem Q., Summer 2014, at 100; Adel
Manna, From Seferberlik to the Nakba: A Personal Account of the Life of Zahra Al-Ja’uniyya,
Jerusalem Q., Spring 2007, at 59. Many of these accounts have also been published in
English in the Journal of Palestine Studies. See, e.g., Muhammad Hallaj, Recollections of the
Nakba Through a Teenager’s Eyes, J. Palestine Stud., Autumn 2008, at 66; Ghada Karmi,
The 1948 Exodus: A Family Story, J. Palestine Stud., Winter 1994, at 31; Mamdouh Nofal,
Fawaz Turki, Haidar Abdel Shafi, Inea Bushnaq, Yezid Sayigh, Shafiq Al-Hout, Salma Khadra
Jayyusi & Musa Budeiri, Reflections on Al-Nakba, J. Palestine Stud., Autumn 1998, at 5; Elias
Srouji, The Last Days of “Free Galilee”: Memories of 1948, J. Palestine Stud., Fall 2003, at
55; Um Jabr Wishah, Palestinian Voices: The 1948 War and Its Aftermath, J. Palestine Stud.,
Summer 2006, at 54.
Journalist Rosemary Sayigh’s work The Palestinians produced an early and pioneering
account of the Nakba based on extensive interviews with Palestinian refugees. Rosemary
Sayigh, The Palestinians (1979).
For an account of my grandmother’s Nakba testimony, see Rabea Eghbariah, The
Nakba of Nazmiya Al-Kilani, Jadaliyya (May 15, 2023), https://www.jadaliyya.com/
Details/45041 [https://perma.cc/UN4X-V8RR].
Oral history is an especially important source given the Israeli government’s history of
manipulating Israeli archives as well as obliterating and looting Palestinian archives. See,
e.g., Nahla Abdo & Nur Masalha, Introduction to An Oral History of the Palestinian Nakba
1 (Nahla Abdo & Nur Masalha eds., 2019) (using “oral history, personal memories,
narratives and interviews to study, analyse and represent the Palestinian Nakba/genocide”);
Nur Masalha, The Palestine Nakba: Decolonising History, Narrating the Subaltern,
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2024] NAKBA AS A LEGAL CONCEPT 891
created have become an infernal feature of Palestinian existence that
extends from the twentieth into the twenty-first century. Put simply, an
ongoing Nakba.6
For those expelled, refugeehood has become a form of permanent
exile;7
three generations after the 1948 Nakba, millions are still being born
Reclaiming Memory 137–39, 143–47 (2012) (describing instances in which Israeli officials
have “looted or destroyed” Palestinian archives and artifacts); Seth Anziska, The Erasure of
the Nakba in Israel’s Archives, J. Palestine Stud., Autumn 2019, at 64, 66–68 (describing the
Israeli government’s efforts to conceal and remove archival documents in order to reshape
“how the past is narrated and who is believed”); Ariella Azoulay, Photographic Conditions:
Looting, Archives, and the Figure of the “Infiltrator”, Jerusalem Q., Winter 2015, at 6, 10
(“Looting was not a single past instance; the looting of Palestinian archives has been an
ongoing procedure . . . .”); Hagar Shezaf, Burying the Nakba: How Israel Systematically
Hides Evidence of 1948 Expulsion of Arabs, Haaretz ( July 5, 2019), https://www.haaretz.com/
israel-news/2019-07-05/ty-article-magazine/.premium/how-israel-systematically-hides- evidence-of-1948-expulsion-of-arabs/0000017f-f303-d487-abff-f3ff69de0000 (on file with the
Columbia Law Review) (“Since the start of the last decade, [Israeli] Defense Ministry teams
have been scouring Israel’s archives and removing historic documents. . . . Hundreds of
documents have been concealed as part of a systematic effort to hide evidence of the
Nakba.”).
6. I first explored the ongoing Nakba as a legal concept in a piece that the Harvard
Law Review solicited, edited, approved, and then nixed. Natasha Lennard, Harvard Law
Review Editors Vote to Kill Article About Genocide in Gaza, The Intercept (Nov. 21, 2023),
https://theintercept.com/2023/11/21/harvard-law-review-gaza-israel/ [https://perma.cc/
NSD5-HEL5]. The Nation published a full version of the piece prefaced by a note explaining
the “‘unprecedented decision’ by the leadership of the Harvard Law Review to prevent the
piece’s publication.” See Rabea Eghbariah, The Harvard Law Review Refused to Run This
Piece About Genocide in Gaza, The Nation (Nov. 21, 2023), https://www.thenation.com/
article/archive/harvard-law-review-gaza-israel-genocide/ [https://perma.cc/8Q82-JGXR].
The decision spurred wide public condemnation, including the public dissent of over
twenty-five editors. Letter from Int’l Solidarity Team, Academia for Equal., to Bd. of Eds.,
Harv. L. Rev., Your Decision Regarding Rabea Eghbariah’s HLR Online Article—Upholding
Freedom of Speech Requires Courage (Dec. 11, 2023), https://663a4684-b06c-4c86-9e
17-b8de8637525a.usrfiles.com/ugd/663a46_72d448d12f57411e8e0a6ad537c81569.pdf
[https://perma.cc/U8SU-8BPM]; Alonso Gurmendi, Open Statement by University Law
Teachers on Academic Freedom, OpinioJuris (Dec. 8, 2023), https://opiniojuris.org/2023/12/
08/open-statement-by-university-law-teachers-on-academic-freedom/ [https://perma.cc/
X28W-3XQJ]; Hina Uddin, Opinion, The Harvard Law Review’s Palestine Exception, The
Crimson (Dec. 1, 2023), https://www.thecrimson.com/article/2023/12/1/uddin-harvard- palestine-exception/ [https://perma.cc/3VNG-EGUE]. The NYU Review of Law and Social
Change republished the piece and included a statement from its board noting that “we
cannot allow those who seek to silence Palestinians to obfuscate the scope and genocidal nature
of this tragedy.” Rabea Eghbariah, The Ongoing Nakba: Toward a Legal Framework for Palestine,
48 N.Y.U. Rev. L. & Soc. Change: Harbinger 94 (2023), https://socialchangenyu.com/
harbinger/toward-a-legal-framework-for-palestine/ [https://perma.cc/Y47H-3RDK]
[hereinafter Eghbariah, The Ongoing Nakba].
I am thankful to the student editors with the Columbia Law Review for pursuing this
Article and demonstrating an extraordinarily principled, professional, and unwavering
commitment to (academic) freedom in a climate of intense intimidation and unparalleled
repression.
7. The concept of exile is a central feature of the Palestinian experience. See Edward
Said, Reflections on Exile and Other Essays 173 (2002) (“Exile is strangely compelling to
think about but terrible to experience. It is the unhealable rift forced between a human
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892 COLUMBIA LAW REVIEW [Vol. 124:887
into refugee status and languishing in refugee camps.8
For those who
managed to remain within the 1949 armistice territories delineating
Israel’s unofficial borders, nineteen years of military rule followed,9
marking the beginning of institutional subjugation and second-class
citizenship.10 For those who lived in or were displaced to the West Bank,
being and a native place, between the self and its true home: its essential sadness can never
be surmounted.”).
8. Palestinian refugees inhabit a unique legal status in the international legal order
as the 1951 Refugee Convention effectively excluded them from its purview. See Susan M.
Akram, Palestinian Refugees and Their Legal Status: Rights, Politics, and Implications for a
Just Solution, J. Palestine Stud., Spring 2002, at 36, 38–40. The international community has
since managed the precarious situation of Palestinian refugees through the combination of
the United Nations Conciliation Commission for Palestine (UNCCP) and the United
Nations Relief and Works Agency for Palestine Refugees (UNRWA). Id. For a review of the
legal status of Palestinian refugees, see generally Francesca P. Albanese & Lex Takkenberg,
Palestinian Refugees in International Law (2d ed. 2020); Akram, supra. According to
UNRWA, “Nearly one-third of the registered Palestine refugees, more than 1.5 million
individuals, live in 58 recognized Palestine refugee camps in Jordan, Lebanon, the Syrian
Arab Republic, the Gaza Strip and the West Bank, including East Jerusalem.” Palestine
Refugees, UN Relief & Works Agency for Palestine Refugees Near E., https://www.unrwa.org/
palestine-refugees [https://perma.cc/96EC-MF63] (last visited Apr. 12, 2024). This number
does not reflect the nearly 1.9 million Palestinians displaced during the unfolding genocide
in the Gaza strip. Hostilities in the Gaza Strip and Israel | Flash Update #68, U.N. Off. for
Coordination Humanitarian Affs. (Dec. 13, 2023), https://www.ochaopt.org/content/
hostilities-gaza-strip-and-israel-flash-update-68 [https://perma.cc/BC39-247M] (“As of 12
December, according to UNRWA, almost 1.9 million people in Gaza, or nearly 85 per cent
of the population, are estimated to be internally displaced, many of them have been
displaced multiple times.”).
9. Shira Robinson, Citizen Strangers 38–47 (2013) (“By far the most important step
that Zionist leaders took to ensure absolute Jewish rule over the Palestinians who remained
in Israel was to entrench rather than abolish the military regime they had established after
the formal end of the war.”); see also Sabri Jiryis, Inst. for Palestine Stud., The Arabs in
Israel, 1948–1966, at 119–74 (Meric Dobson trans., 1969) (describing the conditions faced
by Palestinians in Israel prior to 1967); Yair Bäuml, Israel’s Military Rule Over Its Palestinian
Citizens (1948–1968), in Israel and Its Palestinian Citizens 103, 108–12 (Nadim M. Rouhana
ed., 2017) (describing the creation and operation of the post-Nakba military government);
Mansour Nasasra, Two Decades of Bedouin Resistance and Survival Under Israeli Military
Rule, 1948–1967, 56 Middle E. Stud. 64, 64–66 (2020) (recounting the operation of Israeli
military rule in the Naqab). For further insightful studies of the military rule imposed on
Palestinian citizens, see generally Al-Aqlīyah Al-’Arabīyah Al-Filasṭīnīyah fī Isrā’īl: Fī Ẓili Al- Ḥukm Al-’Askarī Wa’irthih [The Arab Palestinian Minority in Israel in the Shadow of the
Military Rule and Its Legacy] (Mustafa Kabaha ed., 2014); Hillel Cohen, Good Arabs: The
Israeli Security Agencies and the Israeli Arabs, 1948–1967 (2010).
10. See Robinson, supra note 9, at 188–93 (noting the ways in which Palestinians were
denied meaningful citizenship under military rule). For additional scholarship on the legal
status of Palestinian citizens of Israel, see Mazen Masri, The Dynamics of Exclusionary
Constitutionalism 4 (2017) (discussing the tensions and challenges of Israel’s self-definition
as a “Jewish and democratic” state, particularly in a state with a large indigenous, non-Jewish
minority population); Hassan Jabareen, Hobbesian Citizenship: How the Palestinians
Became a Minority in Israel, in Multiculturalism and Minority Rights in the Arab World 189,
193 (Will Kymlicka & Eva Pföstl eds., 2014) [hereinafter Jabareen, Hobbesian Citizenship]
(discussing the creation of “Hobbesian citizenship” for Palestinians in 1949 and 1950, which
distinguished Palestinians as “the conquered, occupied, and defeated community”); Nimer
