Colonialism Archives - Columbia Law Review

“ 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.[footnote]Edward W. Said, The Pen and the Sword 54 (1994).[/footnote] 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,[footnote]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).[/footnote] 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.[footnote]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 comprehensive 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.[/footnote] 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[footnote]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.”).[/footnote] from the material and psychic reality of the 1948 Nakba: For every household there is a Nakba story, for each refugee a stolen home.[footnote]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, 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.”).[/footnote] 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.[footnote]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-4c86-9e17-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.[/footnote] For those expelled, refugeehood has become a form of permanent exile;[footnote]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 being and a native place, between the self and its true home: its essential sadness can never be surmounted.”).[/footnote] three generations after the 1948 Nakba, millions are still being born into refugee status and languishing in refugee camps.[footnote]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.”).[/footnote] For those who managed to remain within the 1949 armistice territories delineating Israel’s unofficial borders, nineteen years of military rule followed,[footnote]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).[/footnote] marking the beginning of institutional subjugation and second-class citizenship.[footnote]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 Sultany, The Legal Structure of Subordination: The Palestinian Minority and Israeli Law, in Israel and Its Palestinian Citizens, supra note 9, at 191, 191 (describing how Israeli law “generally advanced, justified, and perpetuated a separate and inferior status for the Palestinian citizens in Israel”). In 2018, Israel added a constitutional layer to the inferiority of Palestinian citizens by enacting a Basic Law known as the Jewish Nation-State Law. See Hassan Jabareen & Suhad Bishara, The Jewish Nation-State Law: Antecedents and Constitutional Implications, J. Palestine Stud., Winter 2019, at 43, 50.[/footnote] 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[footnote]As Israel occupied the West Bank, it displaced some 200,000 Palestinians to Jordan. See Atwa Jaber, No Bridge Will Take You Home: The Jordan Valley Exodus Remembered Through the UNRWA Archives, Jerusalem Q., Winter 2023, at 10, 20. An additional 130,000 Syrians and Palestinians have been forcibly displaced from the occupied Golan Heights, where Israel depopulated over 130 villages. See Tayseer Mara’i & Usama R. Halabi, Life Under Occupation in the Golan Heights, J. Palestine Stud., Autumn 1992, at 78–79.[/footnote] and decades of military domination, siege, and annexation, imposing divergent realities on these locales.[footnote]While international law still clusters the West Bank, the Gaza Strip, and East Jerusalem under the single label of “Occupied Palestinian Territories,” the indefinite reality of occupation has manifested through different Israeli legal designations and governance structures in each of these locales. Although formal annexation took place only in 1980, Israel extended its law to East Jerusalem immediately after occupying that area in 1967 and designated the Palestinian Jerusalemite population as residents but not citizens, a disenfranchised, precarious, and revocable legal status. Compare Law and Administration Ordinance (Amendment No. 11) Law, 5727–1967, LSI 21 75 (1966–67) (Isr.) (allowing, in 1967, the Israeli government to extend Israeli law to any area by order), and Municipalities Ordinance (Amendment No. 6) Law, 5727–1967, LSI 21 75 (1966–67) (Isr.) (allowing, in 1967, the Israeli government to extend the boundaries of any Israeli municipality into areas where Israeli law had been extended), with Basic Law: Jerusalem, Capital of Israel, 5740–1980, LSI 34 209 (1979–80), as amended (Isr.) (designating “Jerusalem, complete and united” as the capital of Israel). In contrast, the Palestinian populations in the West Bank and Gaza have remained subjects of Israeli control but neither citizens nor residents of the Israeli state. Freedom in the World 2024: West Bank, Freedom House, https://freedomhouse.org/country/west-bank/freedom-world/2024 [https://perma.cc/2L83-G2X5] (last visited Mar. 30, 2024) (describing the administrative status of Palestinian people living in the West Bank and Gaza). The emergence of the Palestinian Authority and the fragmentation of the West Bank into areas A, B, and C has further complicated this legal structure. See id. The chasm between the legal status of Palestinians in Gaza and Palestinians in the West Bank was further cemented after the Israeli blockade on the Gaza Strip in 2007, which imposed severely brutal restrictions on movement of both people and goods. Freedom in the World 2024: Gaza Strip, Freedom House, https://freedomhouse.org/country/gaza-strip/freedom-world/2024 [https://perma.cc/SUF6-CS53] (last visited Mar. 30, 2024). For a visualization of these fragmentary policies, see Conquer and Divide, B’Tselem, https://conquer-and-divide.btselem.org/map-en.html [https://perma.cc/KJ68-ZJQW] (last visited Apr. 11, 2024). For more on the structure of fragmentation, see infra section III.B.2.[/footnote] 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.[footnote]Rabea Eghbariah, Jewishness as Property Under Israeli Law, Law & Pol. Econ. Project Blog ( July 9, 2021), https://lpeproject.org/blog/jewishness-as-property-under-israeli-law/ [https://perma.cc/KZY4-Y4KE].[/footnote] 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.[footnote]Id.; see also B’Tselem, A Regime of Jewish Supremacy From the Jordan River to the Mediterranean Sea: This Is Apartheid 2 (2021), https://www.btselem.org/sites/default/files/publications/202101_this_is_apartheid_eng.pdf [https://perma.cc/2GPN-UJMY] (“In the entire area between the Mediterranean Sea and the Jordan River, the Israeli regime implements laws, practices and state violence designed to cement the supremacy of one group – Jews – over another – Palestinians.”); Jabareen & Bishara, supra note 10, at 52 (arguing that the enactment of the 2018 Jewish Nation State Law has contributed to “the consolidation of Jewish ethnic supremacy and domination”).[/footnote] 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,[footnote]The concept “laboratories of oppression” echoes the concept of “laboratories of democracy” that Justice Louis Brandeis originated in New State Ice Co. v. Liebmann . See 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). Brandeis’s Zionist legacy and his contribution to the colonization of Palestine remains unrecognized at best, or celebrated at worst, in American legal education. For more on Brandeis’s Zionism, see generally Louis Brandeis, Brandeis on Zionism: A Collection of Addresses and Statements (1942). I first thought of the concept of “laboratories of oppression” in conversation with Alice Speri from The Intercept . See Alice Speri, Labs of Oppression, The Intercept (Apr. 1, 2023), https://theintercept.com/2023/04/01/israel-palestine-apartheid-settlements/ [https://perma.cc/2AY2-P5TR]. The concept of “laboratories of oppression” invites further scrutiny into the functions and profits that each laboratory generates. See Antony Loewenstein, The Palestine Laboratory: How Israel Exports the Technology of Occupation Around the World 15 (2023) (examining “[h]ow Israel has exported the occupation and why it’s such an attractive model” and arguing that Palestine has served as a “laboratory for methods of control and separation of populations”); Darryl Li, The Gaza Strip as Laboratory: Notes in the Wake of Disengagement, J. Palestine Stud., Winter 2006, at 38, 38–39 (arguing that Gaza functions as an experimental zone for the Israeli government to test means of control to later be used in the West Bank).[/footnote] together forming a totality of evolving domination best identified through the concept of Nakba and its structure of fragmentation.[footnote]The emergence of a regime premised on legal fragmentation is the result of both classic divide-and-conquer tactics and the lack of an overall Israeli “solution” or “exit strategy” for the Palestinian population that remained in Palestine and came under Israeli rule. The intense contradictions that underpin the Israeli desire to acquire the land but not its Palestinian population have increasingly produced fragmentation as a structure of governance. Israeli Prime Minister Benjamin Netanyahu encapsulated this logic by asserting in 2019 that “whoever wants to prevent a Palestinian state must support Hamas and the transfer of money to Hamas . . . . This is part of our strategy—to divide and distinguish the Palestinians in Gaza from the Palestinians in Judea and Samaria [i.e., the occupied West Bank].” Shaul Arieli, Opinion, HaFalstinim l’o Yevatru al A’za t [The Palestinians Will Not Give Up Gaza], Haaretz (Aug. 25, 2022), https://www.haaretz.co.il/opinions/2022-08-25/ty-article-opinion/.premium/00000182-d4df-d9c0-a3d3-fcdff75e0000 (on file with the Columbia Law Review ) (author’s translation). The evolution of this regime has not been comprehensively examined in legal literature, although the concept of fragmentation as domination is often invoked as part of the apartheid analysis. For further discussion on fragmentation, see infra section III.B.2.[/footnote] From 1948 until the present, the evolution of the Nakba into ongoing Nakba has resembled the Palestinian present continuous,[footnote]Much like the present continuous verb tense, it is defined by its ongoing and present nature.[/footnote] an ongoing reality characterized by displacement and replacement.[footnote]For imagery of pre-1948 Nakba Palestine, see generally Teresa Aranguren & Sandra Barrilaro, Against Erasure: A Photographic Memory of Palestine Before the Nakba (Haymarket Books 2024) (Róisín Davis & Hugo Rayón Aranguren trans., 2016) (documenting, through photographs, pre-1948 Palestinian life); Ariella Azoulay, From Palestine to Israel: A Photographic Record of Destruction and State Formation, 1947–1950 (2011) (“Bringing these photographs together allowed me to create a new archive: a civil archive which makes it possible to view the catastrophe they recorded.”); Walid Khalidi, Before Their Diaspora: A Photographic History of the Palestinians, 1876–1948 (2d ed. 1991) [hereinafter Khalidi, Before Their Diaspora] (“[A] retrospective glance can also serve a constructive purpose. That is the intent of this book, which it is hoped will shed some light on the Palestinians as a people in Palestine before their diaspora, and on the genesis and evolution of the Palestine problem during its formative phase.”).[/footnote] 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.[footnote]This Article uses the term “Nakba” in three distinct ways: “1948 Nakba” to refer to the foundational event(s) of the Palestinian Nakba; “ongoing Nakba” to refer to the continuous Palestinian reality since 1948; and “Nakba,” without a definite article, to refer to the concept of Nakba more broadly, including in law. Since this Article focuses on the concept of Nakba as applied to Palestine, it capitalizes the term in all instances.[/footnote] 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.[footnote]The terms “ethnic cleansing” and “settler colonialism” are two additional frameworks often invoked to describe the reality of Palestinians. The exclusion of these terms from Part II stems from the fact that neither ethnic cleansing nor settler colonialism are doctrinally consolidated or codified legal frameworks. The discussion in the introduction to Part II and Part III expands on the placement of settler colonialism and ethnic cleansing in the context of the Nakba.[/footnote] 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.[footnote]For examples of such scholarship, see infra notes 35, 36, 39, 40, 119, 148, and 149. In 2011, the Israeli Parliament passed a law known as the “Nakba Law,” which authorized defunding any public institution—including Palestinian cultural or educational institutions in Israel—that engages in activities commemorating the Nakba. The Israeli Supreme Court has dismissed a challenge to the Nakba Law, citing the ripeness doctrine and dismissing the chilling effect the law creates. HCJ 3429/11 Alumni Ass’n of the Arab Orthodox Sch. in Haifa v. Minister of Fin., 2012 Isr. Law Rep. 55; see also Adalah and ACRI: Israeli High Court Ignored the Chilling Effect Already Caused by the “Nakba Law,” Adalah ( Jan. 5, 2012), https://www.adalah.org/en/content/view/7188 [https://perma.cc/7KMV-BJPP] (describing how the court’s ruling encourages discrimination against Arabs in Israel); Shira Kadari-Ovadia, Israeli University Cancels Event Marking Nakba Day, Citing Violation of Law, Haaretz (May 16, 2019), https://www.haaretz.com/israel-news/2019-05-16/ty-article/.premium/in-first-israeli-university-bans-political-event-citing-violation-of-nakba-law/ (on file with the Columbia Law Review ) (describing how the Nakba Law allows Israel to limit funds to institutions that treat Independence Day as a day of mourning for the hundreds of thousands of Arabs displaced during the 1948 war); Shira Kadari-Ovadia, Israel’s Education Ministry Includes Anti-Nakba Clause in Tender, Haaretz (Apr. 14, 2022), https://www.haaretz.com/israel-news/2022-04-14/ty-article/.premium/israels-education-ministry-includes-anti-nakba-clause-in-tender/00000180-5ba8-db1e-a1d4-dfe905900000 (on file with the Columbia Law Review ) (describing the Education Ministry’s decision to conflate the day of mourning in reference to Nakba day with Holocaust denial); Sawsan Zaher, The Prohibition on Teaching the Nakba in the Arab Education System in Israel, Adalah’s Newsl. (Adalah, Haifa, Isr.), Sept. 2010, https://www.adalah.org/uploads/oldfiles/newsletter/eng/sep10/docs/Sawsan %20Nakba%20English%20final.pdf [https://perma.cc/Q25N-YM9D] (describing the vast repercussions of the Knesset Members’ decision to prohibit any reference to the Nakba as a day of mourning). For scholarship that further explores this phenomenon of Nakba denial, see generally Ronit Lentin, Co-Memory and Melancholia: Israelis Memorialising the Palestinian Nakba (2010); Saree Makdisi, Tolerance Is a Wasteland: Palestine and the Culture of Denial (2022); Nur Masalha, The Politics of Denial: Israel and the Palestinian Refugee Problem (2003); Ilan Pappe, Nakba Denial and the “Peace Process,” in The Ethnic Cleansing of Palestine (2006) [hereinafter Pappe, Ethnic Cleansing]; Maha Nassar, Exodus, Nakba Denialism, and the Mobilization of Anti-Arab Racism, 49 Critical Socio. 1037 (2023); Uri Ram, Ways of Forgetting: Israel and the Obliterated Memory of the Palestinian Nakba, 22 J. Hist. Socio. 366 (2009).[/footnote] 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.[footnote]While this Article argues for the recognition of the Nakba as such, it simultaneously recognizes the value and importance of analogies. The tensions between the universal and the particular is a theme that accompanies this Article and invites further reflections. This Article understands the particularity of the Nakba as reinforcing, rather than undermining, universal lessons. For the importance of analogy in the case of Palestine, see Masha Gessen, In the Shadow of the Holocaust, New Yorker (Dec. 9, 2023), https://www.newyorker.com/news/the-weekend-essay/in-the-shadow-of-the-holocaust (on file with the Columbia Law Review ) (arguing that “[f]or the last seventeen years, Gaza has been a hyperdensely populated, impoverished, walled-in compound where only a small fraction of the population had the right to leave for even a short amount of time—in other words, a ghetto”); Eric Levitz, Masha Gessen on Israel, Gaza, and Holocaust Analogies, N.Y. Mag. (Dec. 23, 2023), https://nymag.com/intelligencer/2023/12/masha-gessen-on-israel-gaza-and-holocaust-analogies.html [https://perma.cc/6RRT-GT5J] (“[I]f the whole rationale for maintaining Holocaust memory is the promise of ‘Never again’ — is the pledge to learn from history — then how in the world do you learn from history . . . if you say that it cannot be compared to anything that is going on now?”). For making this analogy, Masha Gessen’s Hannah Arendt award ceremony was suspended in Germany. Kate Connolly, Award Ceremony Suspended After Writer Compares Gaza to Nazi-Era Jewish Ghettos, The Guardian (Dec. 14, 2023), https://www.theguardian.com/world/2023/dec/14/award-ceremony-suspended-after-writer-masha-gessen-compares-gaza-to-nazi-era-jewish-ghettos [https://perma.cc/9BCV-UQBD].[/footnote] 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.[footnote]Naming the genocide in Gaza is not contingent upon a final finding by a legal tribunal. See Eghbariah, The Ongoing Nakba, supra note 6, at 94–95 (“Some may claim that the invocation of genocide, especially in Gaza, is fraught. But does one have to wait for a genocide to be successfully completed to name it?” (footnotes omitted)). We know that Israel is committing a genocide in Gaza not because a legal tribunal said so, but because genocidal intent permeates Israeli society, military, and politics and because it is corroborated by the material reality of Palestinians in Gaza. While the International Court of Justice has recognized South Africa’s case charging Israel of genocide as “plausible,” its ruling is best understood as declarative rather than constitutive. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (S. Afr. v. Isr.), Order, 2024 I.C.J. No. 192, ¶ 54 ( Jan. 26), https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-ord-01-00-en.pdf [https://perma.cc/L9MW-R77T] (“In the Court’s view, the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights . . . for which [South Africa] is seeking protection are plausible. This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts . . . .”). For a database containing over 500 instances of Israeli incitement to genocide, see Law for Palestine Releases Database With 500+ Instances of Israeli Incitement to Genocide—Continuously Updated, Law for Palestine ( Jan. 4, 2024), https://law4palestine.org/law-for-palestine-releases-database-with-500-instances-of-israeli-incitement-to-genocide-continuously-updated [https://perma.cc/BTN7-9BVZ]. Reports, expert opinions, and court documents have compiled undeniably strong evidence showing that Israel is committing genocidal acts in Gaza. See, e.g., Human Rights Council, Anatomy of a Genocide—Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territory Occupied Since 1967, U.N. Doc. A/HRC/55/73 (Mar. 24, 2024), https://www.un.org/unispal/document/anatomy-of-a-genocide-report-of-the-special-rapporteur-on-the-situation-of-human-rights-in-the-palestinian-territory-occupied-since-1967-to-human-rights-council-advance-unedited-version-a-hrc-55 [https://perma.cc/EBX2-HV6D] [hereinafter Anatomy of a Genocide]; Application Instituting Proceedings 1 (S. Afr. v. Isr.), https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf [https://perma.cc/8SZQ-XQVW]; Complaint at 1–2, Def. for Child. Int’l—Palestine v. Biden, No. 3:23-cv-05829 (filed Nov. 13, 2023), https://ccrjustice.org/sites/default/files/attach/2023/11/Complaint_DCI-Pal-v-Biden_ww.pdf [https://perma.cc/H9W4-MXM5]; Declaration of William A. Schabas in Support of Plaintiffs’ Motion for Preliminary Injunction at 1, Def. for Child. Int’l , No. 3:23-cv-05829 (filed Nov. 16, 2023), https://ccrjustice.org/sites/default/files/attach/2023/11/Declaration%20Expert%20William%20Schabas_w.pdf [https://perma.cc/Y4Q7-ULLN].[/footnote] 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.[footnote]A vast body of scholarship has articulated the symbiosis between colonialism and international law. See generally Anthony Anghie, Imperialism, Sovereignty, and the Making of International Law (2007); Siba N’Zatioula Grovogui, Sovereigns, Quasi Sovereigns, and Africans: Race and Self-Determination in International Law (1996); Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960 (2001); Makau Mutua, Savages, Victims, Saviors: The Metaphor of Human Rights, 42 Harvard Int’l L.J. 201 (2001). For a discussion on the placement of Palestine within Third World Approaches to International Law (TWAIL) literature, see Roundtable: Locating Palestine in Third World Approaches to International Law, 52 J. Palestine Stud., no. 4, 2023, at 100, 101 (observing that “[i]nternational law in its past and present is deeply implicated in the settler colonization of Palestine and the subordination of Palestinians” and discussing the placement within and absence of Palestine from “the overall canon of TWAIL scholarship”).[/footnote] 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.[footnote]Reflective of this sentiment are the words of Irish lawyer Blinne Ní Ghrálaigh in the closing remarks of South Africa’s case before the International Court of Justice charging Israel of genocide. Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (S. Afr. v. Isr.), Verbatim Record, 70 ¶ 28 ( Jan. 11, 2024, 10 a.m.), https://www.icj-cij.org/sites/default/files/case-related/192/192-20240111-ora-01-00-bi.pdf [https://perma.cc/X3QU-XG5D] (“Some might say that the very reputation of international law—its ability and willingness to bind and to protect all peoples equally—hangs in the balance.”).[/footnote] 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.[footnote]See, e.g., Press Release, Security Council, Israel’s Settlements Have No Legal Validity, Constitute Flagrant Violation of International Law, Security Council Reaffirms, U.N. Press Release SC/12657 (Dec. 23, 2016).[/footnote] 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.[footnote]See infra section III.B.[/footnote] 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.[footnote]If Israel has never abided by United Nations Resolution 181 (II), see G.A. Res. 181 (II) (Nov. 29, 1947) (regarding the Partition of Palestine), or Security Council Resolution 242, see S.C. Res. 242 (Nov. 22, 1967) (regarding Israel’s withdrawal from “territories” occupied in the aftermath of 1967), why should Palestinians or the international community continue to accept these legal frameworks as the limits of their imagination? See Richard Falk, International Law and the Al-Aqsa Intifada, Middle E. Rep., Winter 2000, at 16, 16–18 (arguing that Israel has acted “in consistent and relentless defiance of the overwhelming will of the organized international community” as “expressed through widely supported resolutions passed by the Security Council and the General Assembly of the United Nations”). The intention to defy the Partition Plan long predated the establishment of the Israeli state. In fact, accepting the resolution was simply a veneer to set facts on the ground. As the first Israeli Prime Minister 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.” Tom Segev, A State at Any Cost 264 (2019) [hereinafter Segev, A State at Any Cost] (internal quotation marks omitted) (quoting David Ben-Gurion).[/footnote] 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.”[footnote]See Tareq Baconi, Opinion, The Two-State Solution Is an Unjust, Impossible Fantasy, N.Y. Times (Apr. 1, 2024), https://www.nytimes.com/2024/04/01/opinion/two-state-solution-israel-palestine.html (on file with the Columbia Law Review ) (“Repeating the two-state solution mantra has allowed policymakers to avoid confronting the reality that partition is unattainable . . . and illegitimate as an arrangement originally imposed on Palestinians without their consent in 1947. . . . [T]he two-state solution has evolved to become a central pillar of sustaining Palestinian subjugation and Israeli impunity.”). In the past few years, there has been a revived scholarly interest in revisiting the partition of Palestine and its legality. See generally The Breakup of India and Palestine (Victor Kattan & Amit Ranjan eds., 2023) (studying the partition of India and Palestine both separately and comparatively); Ardi Imseis, The United Nations and the Question of Palestine (2023) [hereinafter Imseis, United Nations and the Question of Palestine] (offering a meticulous legal examination of U.N. Resolution 181(II) to partition Palestine and analyzing the verbatim and summary records of the United Nations Special Committee on Palestine recommending partition); Partitions: A Transnational History of Twentieth-Century Territorial Separatism (Arie M. Dubnov & Laura Robson eds., 2019) [hereinafter Partitions] (exploring the origins of partition, focusing on Ireland, Palestine, and India and Pakistan); Penny Sinanoglou, Partitioning Palestine: British Policymaking at the End of Empire (2019) (studying the trajectory of partition in Palestine and uncovering how “in the eyes of many British officials, partition had become imaginable by the late 1920s, desirable by the mid-1930s, impossible by the late 1930s, and seemingly unavoidable by the mid-1940s”).[/footnote] 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.[footnote]See Robert M. Cover, The Supreme Court, 1982 Term—Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4, 4–5 (1983) (“Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live.”).[/footnote] Historically and conceptually, the 1948 Nakba has existed at the juncture of the Holocaust and Apartheid South Africa.[footnote]See, e.g., Elias Khoury, Foreword to The Holocaust and the Nakba: A New Grammar of Trauma and History, at ix (Bashir Bashir & Amos Goldberg eds., 2019) [hereinafter The Holocaust and the Nakba] (addressing the “complicated and multilayered intersections of the Holocaust and Nakba”). The rise of the apartheid regime in South Africa following the elections in May 1948 took place in parallel with the 1948 Nakba. For more on the interconnected nature of Israel and Apartheid South Africa, see infra section II.B.[/footnote] 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.[footnote]It is important to note that, while Israel capitalized on the Holocaust to create a powerful narrative that monopolizes victimhood to the state, many of the actual victims of the Holocaust have often remained mistreated in and by Israel. See Zahava Solomon, From Denial to Recognition: Attitudes Toward Holocaust Survivors From World War II to the Present, 8 J. Traumatic Stress 215, 216 (1995) (“For the first 20 years after the Holocaust, the distress of the survivors went almost totally unacknowledged. . . . [T]he helping professions . . . engaged in what may be considered dual manifestations of the inability or unwillingness to cope with the survivors’ experience: a conspiracy of silence and blaming the victim.”); Yardena Schwartz, How the State of Israel Abuses Holocaust Survivors, Tablet ( Jan. 25, 2017), https://www.tabletmag.com/sections/israel-middle-east/articles/israel-abuses-holocaust-survivors [https://perma.cc/BWT9-XGPK] (noting that since the end of WWII, Germany has paid “about $31 billion . . . to Holocaust victims in Israel,” but that “more than 20,000 survivors in Israel had never received the government assistance owed to them” and “nearly a third . . . live below the poverty line”); see also Edward Said, The One State Solution, N.Y. Times ( Jan. 10, 1999), https://www.nytimes.com/1999/01/10/magazine/the-one-state-solution.html [https://perma.cc/65QP-3472] (“Thus [the Palestinians] are the victims of the victims, the refugees of the refugees.”).[/footnote]