The Nakba and the Law

In the international legal system, the Palestinian cause has made significant headway since the start of the war in Gaza. In addition to legal processes that have arisen from Israel’s conduct in the war itself—it stands formally accused of genocide at the International Court of Justice (ICJ), and Israeli leaders including prime minister Benjamin Netanyahu face the prospect of arrest warrants for war crimes and crimes against humanity committed—the so called rights-based approach to Palestinian self-determination has picked up steam. In under a year, nine new nations have announced formal recognition of Palestine, and last month the ICJ issued an advisory opinion declaring Israel’s occupation and settlement of Gaza, East Jerusalem, and the West Bank illegal.¹ These developments advance the notion that a Palestinian state exists de jure, albeit under belligerent occupation by Israel.

From the perspective of Palestinian liberation, the rights-based approach has significant advantages over the paradigm it is overtaking: the Oslo framework whereby Israeli and Palestinian representatives negotiate under American oversight toward the establishment of a future Palestinian state. These bilateral negotiations have consistently failed because of the profound power asymmetry between the parties and the partial role of the US as broker. By turning to international legal frameworks and institutions to make claims towards a resolution, the rights-based approach avoids such roadblocks.

But the legal approach has its own shortcomings. By assuming the logic of partition, ongoing efforts within existing legal frameworks overlook the foundational violence of Palestinian dispossession and displacement dating back before the onset of Israel’s occupation in 1967. Responding to these limitations, in a recent law review article, Palestinian legal scholar Rabea Eghbariah has introduced Nakba as a new legal concept to capture the precise harms inflicted upon the Palestinian people. (The article, “Toward Nakba as a Legal Concept,” drew the ire and censorship of legal academics and administrators from Columbia Law School, as an earlier version had at Harvard; it was eventually published by Columbia Law Review in Spring 2024.) As an attorney and as a researcher, Eghbariah works on restrictions on the civil and political rights of Palestinians, and is completing his doctoral studies at Harvard Law School. Phenomenal World editor Jack Gross and attorney and writer Dylan Saba spoke to Eghbariah about Nakba and Palestine in international law.

An interview with Rabea Eghbariah

Jack gross: Let’s start with a foundational question. What is unique about the Palestinian experience vis a vis international law?

rabea eghbariah: There are two ways to think about this. One is a point of uniqueness, and one is a point of salience—what might not be unique, but becomes particularly vivid in the case of Palestine. There is of course a lot that is unique about Palestine historically, but my work is also about demonstrating that the international legal structures implemented in Palestine are part of the broader international legal system and the colonial hierarchies that it produces more generally. It’s a place to see them in their starkest form. 

There is a century-old history now of the Palestine question. It can be traced to different origin points, but one key point of reference is the 1917 Balfour Declaration, when the British administration officially committed to advance a “national home for the Jewish people” in Palestine. From there, international law became the framework that incubated Zionism in Palestine through the mandate system. A unique aspect of Palestine under this system is in it being the only place, out of all that were classified and incorporated by the Mandate commission, to be endorsed and developed as a settler colony. 

The mandate system was a League of Nations system.² Within it, different nations were classified as Class A, B, or C Mandates. Palestine was a Class A Mandate—which meant that it was, quote unquote, the closest to civilization and self-administration, from the point of view of the classifiers. The Balfour Declaration was issued in 1917, five years of military rule followed, and the British Mandate of Palestine was formed in 1922. 

Zionism and British colonialism worked in tandem under the mandate system. Anyone can find this embedded and codified throughout the entire text of the British Mandate for Palestine. Article 7, for example, contains the only mention of the word “Palestinian,” referring to provisions for the acquisition of Palestinian citizenship by Jews. The resulting system follows this logic, erasing 94 percent of the population by negatively defining them simply as the non-Jewish communities of Palestine, and grants supremacy to Jewish national claims to the land. The Mandate is meant to facilitate both the immigration of Jews to Palestine and the development of  Zionist self-governing institutions, while suppressing or denying the same for Palestinians. 

This all of course predates 1948. It is the precondition of the Nakba, the establishment of a system that denied self-determination and made it impossible for Palestinian people to establish self-governing institutions. And it was clearly stated as such. Balfour would explicitly write in a letter to Prime Minister David Lloyd George, “in the case of Palestine we will deliberately and rightly decline to accept the principle of self-determination.”³ 

The Mandate established the international legal infrastructure that sets the scene really for what is happening here in Palestine. 

We’re talking about a settler colonial project advanced through international legal institutions that culminates in the 1948 Nakba. Leading to that point, international law reasserted itself with the partition plan. After the 1936 Arab revolution against the Mandate, the British were essentially looking for a way out, and following World War II, the British decided to delegate the Palestine question to the newly assembled United Nations (UN). The UN dispatched a committee to report on Palestine, and it set forth two competing visions: a minority vision for a single state, and a majority in favor of partition.⁴ The majority, which of course won the day, contains a lot of explicitly racist language, arguing Palestinians are too backward to be granted the right to self-determination, and so on. This colonialist language was still very influential in 1947 and informed the ways in which the international community dealt with Palestine. 

dylan saba: How do you understand the fact that partition—both a kind of colonial strategy and a legal technology—won the day?

re: Partition is a mechanism developed in the course of colonization. The British used it first in Ireland, then in the Indian subcontinent. It was understood as a kind of solution and a form of decolonization—answering, through these measures, questions of nationhood—but of course, in each instance, it violently entrenched the legacies of colonialism. In the case of the Indian subcontinent, this meant a large, violent population transfer—tearing up the territorial integrity of the land, transforming the range of political identities imaginable, and suppressing Kashmiri self-determination.

In Palestine, partition cast the Zionist settler colonial project as a “conflict” between two competing nations rather than one of between a settler society and a colonized people. The concept of partition has also entrenched the Zionist logic of an exclusivist Jewish identity that must be bifurcated and separated from Arab and Palestinian political identities. The two state mantra goes back to this premise of partition.

Once the logic of partition was adopted in Palestine, it necessitated denying Palestinian self-determination and fragmenting the territorial integrity of the land to install the Jewish state on top of it. The recommendation of the UN Special Committee on Palestine (UNSCOP) in 1947 was to give 56 percent of Palestine to the future Jewish state, at a time when Zionists in Palestine held only 7 percent of the Mandate’s total land area. The report’s authors acknowledged that the recommended 56 percent included the most fertile lands while the other unit, namely the future Palestinian state, would perhaps be economically unviable or require continuous international aid to sustain it. Of course the Palestinians rejected it, and it is important to recall that Palestinians continued to articulate political visions that defied partition and offered alternative political horizons even after 1948.

Partition, however, was never implemented in Palestine in its original form but rather birthed the 1948 Nakba and entrenched a brutal system of domination, fragmentation, and denial of self-determination ever since. The UN Partition Plan, adopted in November 1947, paved the way for the conquest of 80 percent of Palestine by Zionist militias and the displacement of over 750,000 Palestinians from their homes between 1947–1949, never to be allowed to return. Zionists used partition as a pretext to carry out this Nakba. As Ben-Gurion himself put it: “We presume that this is only a temporary situation. We will settle first in this place, become a major power, and then find a way to revoke the partition… I do not see partition as a final solution to the Palestine question.”

The term Nakba emerged to describe this radically violent transformation of Palestine from an Arab-majority territory for over a millennium to a self-proclaimed Jewish-state that is built on top of Palestinian destruction. In the aftermath of 1948, the Nakba also reflected an Arab problem unfolding in Palestine, rather than a Palestinian problem projecting itself onto the Arab world. The making of Israel in Palestine meant the rupture of the territorial continuity of the Arab world, and therefore reflected the crisis of the Arab nationalisms. Seventy years later, Palestine is exceptionalized, the Arab world has been further fragmented, the project of Arab nationalism has declined, and Arab governments in the region perceive Palestine as something they need to manage. 

jg: In your paper, you describe a historical episode that is illustrative of how international law has attempted to grapple with the specificity of the Palestinian experience—attempted to use concepts to understand and act in the wake of atrocities. In a report following the Sabra and Shatila massacre in 1980, chaired by Sean MacBride, a group of international lawyers debated the utility of the genocide concept and whether it was appropriate to account for that violence. 

re: The MacBride report is very valuable just in how it exhibits a process of thought. The authors are writing a report concerning the Israeli invasion of Lebanon, and are confronted with the question: Why are the Palestinian people in Lebanon to begin with? In trying to understand the massacre at Sabra and Shatila of 1982, they come to the conclusion that what is happening in Lebanon is tied to what’s happening concurrently in the rest of Palestine—and the forms of governance and domination are connected. So they look for a framework that will allow them to capture these two locations. 

In need of a framework to capture this totality, to link these different coordinates, they expand the concept of genocide. That is, they experiment with what the term genocide is and what it can include. They cite Lemkin and take notice of how Lemkin talked about cultural genocide. They consider how “cultural genocide” could be incorporated into the legal concept of genocide. They try to expand the doctrine, but ultimately reach an impasse. There is a majority opinion that says this is genocide, and a minority opinion dissenting with this view based on the notion that genocide requires special intent. Now, the massacres of Sabra and Shatila undeniably are genocidal—and there is the UN resolution declaring them as acts of genocide in 1982. But the MacBride report authors can’t agree on what genocide is, so they end up recommending to establish an international committee that will look into the concept of genocide as applied to the Palestinians. That’s the only path to a unanimous recommendation. 

Another illuminating parallel in comparing then to now is the rhetoric. The motto to “eliminate Hamas” is today’s pretext for genocide, whereas the slogan for the genocidal massacres back in 1982 was to “eliminate the PLO.” The report on Sabra and Shatila illuminates both how the Palestinian experience has intersected with genocidal violence over seventy-six years, and at the same time, the limits of existing concepts to capture the totality of the Palestinian experience.

In the article, I argue that we need to use Nakba to name the crimes against the Palestinian people. Just as the Holocaust introduced the crime of genocide and the South African experience introduced the crime of apartheid into the international legal vocabulary, the Palestinian experience has the potential to introduce the crime of Nakba to international law. 

It’s understood that international legal crimes pertaining to groups have always overlapped—the Holocaust, for example, included practices that we can easily identify as apartheid. Still, we distinguish between these concepts because we understand that, despite this overlap, the foundational violence that defined the Holocaust is extermination, whereas the foundational violence that defined Apartheid is segregation. So if we look at the Palestinian experience and ask what is the foundational violence that defines the Nakba, we will realize it is displacement. 

But the Nakba never ended, and its foundational violence of displacement has birthed a structure of fragmentation that serves to deny Palestinian self-determination. The Nakba concept aims to be attentive to this ongoing displacement, fragmentation, and denial of self-determination—the distinctive nature of what Palestinians have undergone for the past century.

ds: You write about fragmentation in your article. It’s clear from your argument that the legal regime in Palestine—the territorial fragmentation, the various legal statuses conferred onto Palestinians from different areas on the map—are downstream from partition’s initial intervention. Even Jewish nationalism, now codified in Israel’s 2018 Nation-State Law, is part of that fragmentation from partition. When we look at the Mandate system, we see how the international legal system served the interest of colonial powers and the nascent Zionist state. But it’s less clear, today, given the extraordinary power imbalance between Jewish Israelis and Palestinians, what the purpose of fragmentation is. To put it bluntly: why not just dominate? Why create all these intricate systems? 

re: It is plainly domination by fragmentation. The more fragmented the group is, the less it has the ability to govern itself or resist as a group. Fragmentation creates a coordination problem. There exists an extremely sophisticated system of domination that classifies Palestinians into different legal statuses and ID systems, so that each sub-group becomes defined by its own struggle. As an initial mapping, there are five main legal statuses for Palestinians: Palestinian citizens of Israel, residents of East Jerusalem, residents of the West Bank, residents of Gaza, and refugees or diasporic communities. Each status has an internal dynamic of control, domination, and relative legal privilege. It’s divide and conquer reversed, first was the conquering and after was the dividing. This mode of governance creates Palestinians with greater legal privileges than others, subsets from whom the occupation can extract different functions, tiered labor pools, and so on. On a very basic level, this is the same logic and aim at work when Benjamin Netanyahu promotes political divisions between Gaza and the West Bank. 

On the question of domination by fragmentation, it’s helpful to think of this system as having been constructed over a period of over seventy years, whose origin point is partition, namely, a supposedly binary case of fragmentation. But over time this origin point leads to a more layered system of fragmentation, given that in 1967 Israel also conquered the remaining Palestinian lands. What do you do with all these people that you’ve conquered? They’re now, properly speaking, subjects of your regime, but you can’t make all of them citizens, because that will sabotage the project of maintaining a Jewish majority. Palestinians index a problem for the Zionist project, which is that the mere existence of Palestinians challenges and disrupts the system, and so it evolves with each step aiming to further fragment, control, and govern that existence. This system of control is structured by legal classifications that determine the socio-legal status of each Palestinian in the system.

ds: What you’ve identified as fragmentation is a principal political barrier for Palestinian liberation, and elaborating this problem is important. I’m curious how you see the role of developing this legal concept of Nakba. Is it to name the political horizon and to reaffirm a struggle against fragmentation? Is it about external pressure, galvanizing international advocates so that they may correctly name the form of domination? What is the function of legal scholarship in addressing problems that are unsolved during historical circumstances that are unfolding?

re: To address your first question, I would say you’re absolutely right: unity and fragmentation are forces that co-produce what Palestinians are today. Different junctures in time make manifestations of unity or fragmentation more salient. In 2021, for example, the protests against the ethnic cleansing of Sheikh Jarrah expanded swiftly to manifest in a unity of Palestinians between the Jordan River and the Mediterranean Sea. This popular uprising was therefore dubbed the “Unity Intifada.” The genocide in Gaza, in contrast, has uncovered the forces of fragmentation more clearly. Each sub-group of Palestinians has faced an entirely different material reality that reflects the depth of fragmentation. Still, it would be a grave mistake to think of this fragmentation/unity in binary terms. The forces that drove the Unity Intifada are really always at play. At the same time, Zionism’s driving mechanism is the ever-expanding fragmentation of Palestinians. The Nakba concept articulates this dialectic, and how Palestinian existence is defined by the interplay between imagined unity and material and legal fragmentation.

Now, as to your next question, why should we even try to make this concept? Is it just purely an intellectual exercise? What I can say is that we are observing a moment where there is urgency in the language we use. I think what I’m trying to do is to offer a diagnosis that addresses the root cause of the problem. There is a risk that, if confined to a certain subset of the Palestine question, the question of genocide may exceptionalize Gaza. The Palestine question becomes the Gaza question, and the Gaza question becomes the genocide question—as if this were unrelated to what’s happening in the West Bank, to what’s happening in ‘48, to what’s happening in Jerusalem, or to what’s happening in refugee camps. There is a fundamental injustice that has been unfolding for the last seventy-six years. Developing a distinctive concept of Nakba—as was done in the past, iteratively, for genocide and apartheid—grants us the language to talk about this fragmentation and domination in all its totality.