The Nakba continues, and an important site of its persistence is in the law. This was the idea behind The Nakba & The Law project that gave rise to this website.
Below, three of the site’s Editors — Hassan Jabareen, Katherine Franke, and Suhad Bishara — share their thoughts on the Nakba, the law, and what lies in between. For biographies of the Editors, click here.
Hassan Jabareen: Jewish Privilege and Palestinian Dispossession Cannot be Separated
The Nakba continues to haunt the law in Palestine/Israel in many indirect ways. But sometimes, it speaks to the Nakba directly, as happened when the Israeli Supreme Court upheld the constitutionality of the so-called “Nakba law.” This notorious legislation empowers the state to deny state funds to any entity — including schools, universities, or local authorities — if they commemorate “the day of the establishment of the state as a day of mourning” or if they are seen to be challenging “the existence of Israel as a Jewish and democratic state.”
The Nakba law is clearly a disturbing limitation on the freedom of expression. But more than that, it is a reminder that the Nakba cannot be disentangled from Israel’s attempts to define itself as “Jewish and democratic” state. We know from many statements by politicians and others what this phrase means: a commitment to Jewish demographic supremacy inside the Green Line and denial of the right of return for Palestinian refugees. The logic of this law, and of the court ruling upholding it, is that to commemorate the Nakba — to validate the experiences and memories of Palestinians in Israel — is to deny the legitimacy of the state. And conversely, to affirm the legitimacy of the state is to re-enact the Nakba as dispossessing Palestinians and turning them into refugees, even when they live as citizens in their own homeland. To demand that Palestinians recognize the legitimacy of Israel as a Jewish state is thus inseparable from a demand that they concede the legitimacy of the Nakba and their own dispossession.
So far, the Nakba has been treated mostly as an object of historical study, which is very important. It is also common for Palestinians to speak of an “ongoing Nakba” in the present to describe the continuities between past and current practices of dispossession and exile — in terms of issues such as land confiscation, housing discrimination, and denial of family reunification. The Nakba & The Law project aims to understand how the Nakba persists as a present reality through the legal system.
There is a dialectic here. Israel’s systematic practice of denying Palestinians their rights is linked to their systematic privileging of Jews through the Law of Return. Thanks to the Law of Return, Jews never need to apply for a special permit to live with their families in Israel; they can never be considered “absentees” whose property can therefore be confiscated. Palestinian dispossession and Jewish privilege are yoked together. The law both makes this dynamic possible while also obscuring it. The Nakba & The Law project is about drawing connections to clarify this dynamic and better understand it. Without confronting this reality, there is no possibility for reconciliation or a “new beginning” between the Palestinians and Israel.
Hassan Jabareen is General Director of Adalah
Katherine Franke: Toward a Field of “Nakba Studies”
On May 14, 1948, one minute after the British relinquished control of Palestine, which they had been administering under a mandate from the League of Nations since the First World War, the Jewish Agency Chairman, David Ben-Gurion, proclaimed the existence of the State of Israel. A few days ago, on the 68th anniversary of Ben-Gurion’s proclamation, I attended a Bar Mitzvah of the son of a family friend in an orthodox temple in New York City. I sat upstairs in the women’s section, the mechitza, and listened to the rabbi and the consul general of Israel to New York tell a familiar story: of Israel as the land promised to the Jews by god, of Israel as “only democracy in the Middle East,” and of a country that treats all of its citizens, both zionists and others (interesting that the consul general did not say “Jews and others”) fairly and equally while under constant threat of annihilation from their Islamist neighbors.
This is a familiar story, a story of god-given destiny, of settlement after genocide, and of the miracle that is the state that has grown since its founding in 1948.
When David Ben-Gurion declared a state of Israel on May 14, 1948 his exact words were: “We hereby proclaim the establishment of the Jewish state in Palestine, to be called Israel.” Over the unanimous objections of his foreign policy team, President Truman immediately recognized the new state as the de facto authority of the new Jewish state state of Israel. (The correction, striking out “Jewish state” and substituting of “state of Israel,” was done by hand on the original press release signed by President Truman.)
This would be the story that is told from a zionist vantage point. Yet from the perspective of those for whom Ben-Gurion’s proclamation was a nakba, a catastrophe, this speech act amounted to, accomplished, and underwrote devastating violence. Violence they endure to this day. Part of that violence is the subsequent erasure of the words “in Palestine” from the context and location in which a state of Israel was established as it remembered today as a day to be celebrated by Zionists.
By and large, the academic study of the Nakba, of the violent founding of the state of Israel, and of the kind of power that underwrote that founding and that persists in Israel’s occupation of the West Bank and Gaza, draws from an analysis of settler-colonial governance. Most frequently, the Palestinian context has been considered appropriately subject to the intellectual armature that has emerged from the study of settler-colonialism.
Yet, as some scholars have noted, an analysis of settler-colonialism may not be the best tool to interpret identity, violence, belonging, and dispossession for Palestine and Palestinians. To be sure, the case of Israel is a settler society, but those settlers did not migrate to set up a colony that served the interests of another sovereign state far off from which the settlers hailed, to which the settlers owed fealty, and to which they could ultimately retreat. The original settlers of Israel were not doing the economic, geo-political business of a foreign state. Rather, many of them were refugees from state violence in search of a haven from that very violence. Thus, in so many respects an analysis of settlement, dispossession, belonging, national identity, and citizenship in the Israeli/Palestinian context deserves a different mode of analysis than that crafted by anthropologists, historians, scholars of literature, sociologists, legal scholars, political scientists, economists and others in the cases of Indian, South African, or Algerian for instance.
If we were to undertake a new field, a field we might term “Nakba Studies,” how might it afford the opportunity to consider new ways of knowing Palestine and of knowing Israel beyond the settler-colonial frame. When the Palestinian case is rendered the paradigmatic example, what forms of political economy, what modes of power, what kinds of violence might be foregrounded? What might be revealed that is otherwise marginalized when the interpretive tools of settler-colonialism are bracketed for the moment? How might settlement in the name of zionism be understood as something different from settlement motivated by imperialism? What other catastrophes might be rendered legible and then studied with the tools and methods of analysis that “Nakba Studies” provides? What might be the advantages, as well as limits, of a mode of representation that deploys a particular referent, in this case Nakba – however complexly we might want to define the term – as compared with the methods to be found in settler-colonialism, human rights, or imperialism?
Katherine Franke is Sulzbacher Professor of Law at Columbia Law School.
Suhad Bishara: The Law Normalizes the Nakba
It is important to explore the relationship between the Nakba and the law, including through the Israeli judiciary. Israel’s judges have worked assiduously to enable and perpetuate the dispossession of Palestinians, especially through land confiscations, one of the main tools to prevent return. A primary goal of Israel’s lawmakers and law interpreters has been to nationalize issues related to all Palestinian properties – whether belonging to refugees or those who became citizens – under Israeli law. The legislature and the judiciary made no distinction between refugees and citizens in relation to the end goals of the arbitrary land confiscation laws that were drafted to turn Zionist terms into legal reality. The courts have consistently interpreted the law in a way that leaves no gap, no possibility to revisit the land confiscations of the Nakba for all Palestinians regardless of their location or civic status. The Nakba needs the law, and the law normalizes the Nakba.
The courts have long enacted the Zionist imperative to seize territory and to separate it from Palestinians. To take one lesser-known example: under the 1949 Armistice Agreement, Jordan handed over to Israel some territories that came under its control during the war, especially the “Triangle” area that includes the city of Umm al-Fahm. Palestinian refugees who had sought refuge in those areas during the war became Israeli citizens. But they were nevertheless treated as “absentees” under Israel’s 1950 Absentees’ Property Law and their lands were taken by the state.
Simply for spending some time – involuntarily – in so-called “enemy” territory, they were given the permanent and irrevocable status of “absentee.” This approach was upheld by the High Court in the 1956 Samara case: once an absentee, always an absentee – as are your children and descendants.
Another situation, which I have written about separately on this site, is a 1953 land confiscation statute with validity for only one year that allowed the state to seize land even from Palestinians in Israel who never left their homes. Again, the Court has refused to apply any constitutional scrutiny to this matter and instead legitimized the conquests of the Nakba.
These cases show that in Israel’s treatment of Palestinians, it is their status in relation to land that is the most important legal category, even preceding citizenship. The Israeli judiciary has accordingly maintained a zone that is free of any substantive legal challenge to the country’s land regime and that constricts any space for a civic discourse of rights separate from a commitment to Zionism and perpetuating the results of the Nakba. The Nakba Files site will map out the large and small ways that the law works to normalize Zionism.
Suhad Bishara is Director, Land & Planning Rights Unit, Adalah