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Harvard Law Review Nixes Publication of Article Alleging Gaza Genocide at Eleventh Hour

By Natasha Bakirci, LLB, LLM | Last updated on

Attempts to address the horrendous situation in Gaza, which appears to be spreading to other Palestinian areas, such as the West Bank, have proved a minefield for anyone brave enough to tackle the subject.

UN Secretary-General Antonio Guterres, who has known the wrath of his critics, referred to Gaza as a "graveyard for children" in early November. Since then — save a brief respite of seven days' pause – fatalities in Gaza have skyrocketed. Both sides seem to agree on a death toll of over 15,800 since Israeli operations began in October, with the Gazan authorities asserting that 70% of the dead and wounded are women and children. Some news outlets report that since October 7, up to 16,248 Palestinians have been killed in Gaza, at least 6,000 of them children. The United Nations Relief and Works Agency for Palestine Refugees asserts that about 1.9 million people, constituting 80% of Gaza's entire population, have been internally displaced since Israeli operations began.

Harvard Hesitates

Journalists, lawyers, academics, and the common layman alike are all struggling to comprehend the horrors unfolding before them. This includes Rabea Eghbariah, a Palestinian human rights attorney who has pursued landmark civil rights cases before Israel's Supreme Court, and doctoral candidate at Harvard Law School. Most law students and legal practitioners around the world are familiar with the prestigious Harvard Law Review (HLR), which published its first issue in 1887. Barack Obama, before serving as President of the United States, was made the 104th president of the HLR in 1990, the first Black American to have achieved either of these coveted positions. Eghbariah has also made headlines at the HLR, but not in such encouraging circumstances.

What's interesting is that Eghbariah's essay had already been initially approved, fact-checked, and undergone several rounds of editing. The problem was the subject matter. Eghbariah's essay was on the Voldermort of current-day discourse (who-must-not-be-named), as evident in its title: "The Ongoing Nakba: Towards a Legal Framework for Palestine." This piece postulated that what Palestinians in Gaza have been condemned to suffer over the last two months, namely, "an entrappeddisplacedstarvedwater-deprived population of 2.3 million facing massive bombardments and a carnage in one of the most densely populated areas in the world" met the UN Convention definition of genocide.

Article II of the Convention, drafted in 1948 in the aftermath of the unspeakable horrors of World War II, states that the international crime of genocide "means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

  • Killing members of the group
  • Causing serious bodily or mental harm to members of the group
  • Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
  • Imposing measures intended to prevent births within the group, or
  • Forcibly transferring children of the group to another group"

The term "genocide" was originally introduced by Raphael Lemkin - a Polish-Jewish lawyer, to describe Nazi Germany's egregious policies of extermination perpetrated against Jewish people in Europe.

See No Evil, Hear No Evil

It is beyond our remit at FindLaw to determine whether or not the indisputably tragic situation in Gaza meets the definition of genocide from an international legal perspective— that is for the appropriate bodies (such as the ICJ and ICC, or any ad hoc/specialist tribunals that may be established in the future) to determine based on all the evidence before them. These bodies should have jurisdiction to examine claims of war crimes on all sides.

What is concerning is the unprecedented decision to nix publication of Eghbariah's submission and the rationale given. This is even more odd as it appears that it was HLR's online editors themselves who first reached out and solicited this contribution, which would have been the first piece written by a Palestinian academic ever published by the HLR. The Nation reports that Tascha Shahriari-Parsa, online chair and HLR editor sent a separate email to Eghbariah, explaining that the abrupt decision not to publish "revolved around concerns about editors who might oppose or be offended by the piece, as well as concerns that the piece might provoke a reaction from members of the public who might in turn harass, dox or otherwise attempt to intimidate our editors, staff and HLR leadership." Both Shahriari-Parsa and online editor, Sabrina Ochoa, later commented to The Intercept that they were not aware of this ever having happened before — where a publication-ready article had been pulled after having gone through the lengthy editorial process. For those whose interest has been piqued - Eghbariah's controversial treatise has now been published online by The Nation under the title: The Harvard Law Review Refused to Run This Piece About Genocide in Gaza.

Dox Populi

Albert Einstein, in his typically incisive fashion, remarked: "The world will not be destroyed by those who do evil, but by those who watch them without doing anything." Freedom of expression and academic commentary are necessary pit stops on the way to discerning truth.

The Latin maxim, vox populi, vox dei translates to "the voice of the people is the voice of God." The term dox, on the other hand, is defined as "to publicly identify or publish private information about (someone) especially as a form of punishment or revenge."

It would be most regrettable if we have entered the age of dox populi.

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