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Columbia Law Review
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” (النكبة) 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.
The full text of this Article can be found by clicking the PDF link to the left.
“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.
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 the Palestinian condition. Meaning “catastrophe” in Arabic, the term “al-Nakba” (النكبة) is often used—as a proper noun, with a definite article—to refer to the ruinous establishment of Israel in Palestine, 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. 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.
Palestinians, meanwhile, have never recovered from the material and psychic reality of the 1948 Nakba: For every household there is a Nakba story, for each refugee a stolen home. The conditions that the Nakba created have become an infernal feature of Palestinian existence that extends from the twentieth into the twenty-first century. Put simply, an ongoing Nakba.
For those expelled, refugeehood has become a form of permanent exile; three generations after the 1948 Nakba, millions are still being born into refugee status and languishing in refugee camps. For those who managed to remain within the 1949 armistice territories delineating Israel’s unofficial borders, nineteen years of military rule followed, marking the beginning of institutional subjugation and second-class citizenship. For those who lived in or were displaced to the West Bank, the Gaza Strip, Jerusalem, or the Syrian Golan Heights, the extension of the Israeli occupation in 1967 has brought about further displacement and decades of military domination, siege, and annexation, imposing divergent realities on these locales. Israeli policies and practices of dispossession and displacement have continued to crisscross these legally fragmented geographies to grant Jewish Israelis exclusive property rights throughout the entirety of the land.
Institutionalizing the reality of the Nakba has therefore not only birthed a structure of legal fragmentation but also has instilled one of Jewish supremacy, under which Jewishness has served as the ultimate key to citizenship, rights, and resources. The compounded structure of legal fragmentation includes at least five legal statuses for Palestinians—citizens of Israel, residents of Jerusalem, residents of the West Bank, residents of Gaza, or refugees—that set their respective sociolegal positionalities in the system. Each of these “fragments” is subject to a distinctive dialectic of violence and relative legal privilege in which power dynamics and control mechanisms operate uniquely and shape the experiences of those within its sphere. The Israeli regime has thus crafted an institutional design that is premised on different and mutating laboratories of oppression, together forming a totality of evolving domination best identified through the concept of Nakba and its structure of fragmentation.
From 1948 until the present, the evolution of the Nakba into ongoing Nakba has resembled the Palestinian present continuous, an ongoing reality characterized by displacement and replacement. And yet, the imbrication of the concept of Nakba in law remains unrecognized and often misnamed. This Article brings Nakba to the center of legal analysis, considering it as an independent legal concept encapsulating a distinctive category of violence committed against a group. To understand the Palestinian condition in law, this 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.
To advance this overarching argument, this Article proceeds as follows. Part I traces the origins of Nakba to Zionism—a European political ideology that pursued the creation of a Jewish state in Palestine—and argues that Zionism and Nakba are mutually constitutive. The emergence of modern Zionism has not only displaced Palestinians from Palestine but also replaced Europe’s “Jewish Question” with the ostensibly non-European “Question of Palestine.” Colonization and expulsion constituted an overarching logic of Zionism, culminating in the reality of Nakba. And yet, the very occurrence of the foundational violence of the Nakba is widely denied, dismissed, downplayed, or excused to salvage the ideology of Zionism. To recognize the legal concept of Nakba, this Article first identifies Zionism as its ideological counterpart and insists on understanding Zionism in terms of the Nakba it produced.
Part II considers three overlapping legal frameworks that have been widely applied to Palestine—occupation, apartheid, and genocide—and shows that these frameworks, while useful, remain incapable of capturing the totality of the Palestinian condition. The Nakba has encompassed different legal concepts in a way that makes it fulfill these legal definitions at various junctures, all the while transcending their limits. One key to resolving this tension lies in the recognition of Nakba as a distinct legal concept.
Part III thus moves forward to articulate the form and substance of Nakba as a legal concept. While the frameworks of apartheid and genocide loom over discussions of the Nakba, this Article proposes to distinguish between these three concepts as different, yet overlapping, modalities of crimes against humanity. Deriving a legal understanding of Nakba from its juxtaposition with the most recognizable crimes against groups—genocide and apartheid—allows for the synthesis of existing paradigms into a new concept. Part III thus poses three questions: What is the foundational violence of Nakba? What is the structure of Nakba? And what purpose does Nakba serve? In a nutshell, this Article positions displacement as Nakba’s foundational violence, fragmentation as its structure, and the denial of self-determination as its purpose. Taken together, these components provide an initial legal anatomy of the ongoing Nakba and give substance to a concept in the making.
The conclusion therefore calls for articulating a vision that undoes the Nakba and remedies its persisting abuses. Undoing the Nakba is the only way to transition to a more just and equitable legal and political system that will safeguard the well-being of all people in the territory between the Jordan River and the Mediterranean Sea. This Article suggests five main components as an initial framework toward that end: recognition, return, reparation, redistribution, and reconstitution. Taken together, these components ultimately mean dismantling the regime of domination and reconstructing an egalitarian political framework (or several such frameworks) based on a recognition of the Nakba’s historical and ongoing injustice; the implementation of the right of return; and a combination of reparations and redistribution as a material remedy to the persisting harms of the Nakba.
* * *
The genocide in Gaza has underscored the centrality of Palestine to the international legal order. As the world continues to face the consequences and legacies of colonialism, Palestine remains the most vivid manifestation of the colonial ordering that the international community purports to have transcended. 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. Dismantling the ongoing Nakba is not only a pressing shared responsibility; it is also an auspicious possibility.
The objective of this Article is not to examine the legality of the Nakba as much as to generate a legal framework from the Palestinian experience of the ongoing Nakba. Therefore, this Article neither provides a comprehensive legal history of Palestine nor engages in a doctrinal examination of Israeli violations of international law. Instead, it seeks to transcend existing legal limits and imagine new ways of apprehending the Palestinian condition in law, and by extension, new ways of thinking about undoing the oppressive structures that international law has nurtured and sustained. This Article may thus offer more questions than provide answers, including ones about the applicability of the concept of Nakba to other contexts.
Taking a generative approach to legal doctrine allows us to reassess the often-contradictory international legal corpus and unshackle Palestinians from the unjust legal structures that have often been implemented to confine them. Seeing Palestine through the framework of Nakba allows us to take an unflinching look at the material reality and legal structures that the 1948 Nakba has created, instead of blindly adopting the international fantasy of a “two-state solution.” The framework of Nakba allows us to reconsider the inextricable legal and political arrangements that govern the lives of Palestinians and Jewish Israelis between the Jordan River and the Mediterranean Sea, maintaining an ethnonational hierarchy that continues to produce an intense, brutal, and asymmetrical reality of death and violence.
This Article therefore posits Nakba as the most accurate framework to grasp the regime of domination in Palestine. This call is premised on the understanding that legal concepts do not exist in a vacuum, but within narratives that assign them meaning. Historically and conceptually, the 1948 Nakba has existed at the juncture of the Holocaust and Apartheid South Africa. The concept of Nakba thus provides an opportunity to generate an independent framework that structures the legal questions at play and moves beyond simple analogy. Recognizing Nakba not only bestows a belated recognition upon its primary victims and allows us to imagine liberatory, egalitarian, and just futures but also reinforces, rather than undermines, the universal lessons of the Holocaust by recognizing the grave dangers of situations in which victimhood is used and abused to victimize others.
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