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The Harvard Law Review’s Palestine Exception

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The Harvard Law Review is one of the oldest and most widely cited legal journals in the country. I participated in the grueling endeavor of the six-day writing competition to join the Law Review, like many other first-year law students, because of the chance to engage with emerging literature by leading legal scholars.

As a student interested in human rights and humanitarian law, I knew there would be few opportunities to publish international scholarship within the journal due to its generalist nature. And yet, I never could have imagined that during my tenure as an editor of the Law Review, I would have to argue that international law is real, that atrocities are occurring in Palestine — as they had occurred in Israel — and that truly “reviewing” the law requires engaging scholars from diverse backgrounds with uncomfortable perspectives.

All of this came to a head last month when the Harvard Law Review solicited and subsequently voted to reject publication of “The Ongoing Nakba” by Rabea Eghbariah. The decision to silence Eghbariah has called into question our commitment to academic freedom, and has made us complicit in the continued silencing of Palestinian activists and scholars across the country. The Harvard Law Review must correct this harm, or forever bear the legacy of silence in the face of grave injustice.

The decision to quash “The Ongoing Nakba” came in the form of a collective revocation vote, a deviation from the standard procedure for blog posts. Though the piece was solicited, edited, and approved through the usual process, its publication was delayed and eventually rescinded by a nearly six-hour emergency meeting of the full editorial body — a practice that to many current editors’ knowledge, had never occurred for a solicited piece.

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In considering publication, editors’ concerns ranged from fear of public backlash to more disconcerting criticism of the substantive claims of the piece. During our lengthy deliberations, I couldn’t help but wonder, were objections to the article genuinely based on worries about factual mischaracterization? Or rather, were they grounded in fear of what the piece argues: that when it comes to Palestine, no number of citations are enough to prove violations of international law.

In the days after we reversed course, it became obvious to me that the Harvard Law Review had joined many other students, academics, and journalists across the United States, acquiescing to the Palestine exception to free speech. For what seems like fear of losing their clerkships or big law jobs, my peers, who normally supported academic freedom and human rights, found themselves voting contrary to these principles.

The Palestine exception is destructive, it chills speech and progress, and it is now clear that it has reached one of the highest ivory towers in the United States. Ironically, by failing to publish this article, we have affirmed its trenchant observation that lawyers “tend to sharpen their pens after the smell of death has dissipated.”

As a first generation, low-income student, participating in the Law Review has been one of the greatest achievements of my academic career. Now, it is those characteristics, along with my commitment to international law and academic freedom, which compel me to call on the Harvard Law Review to correct this institutional failure.

The Law Review should take two important steps to make amends for this injustice. First, it must release a public apology to Rabea Eghbariah for discriminatory treatment and inadequate engagement with his article. Second, the Law Review should publish a piece describing the legal framework of abuses against Palestinians in the occupied territories.

I hope these suggestions are taken in good faith, for the betterment of a journal that aims to be academically rigorous. More broadly, across academia, we can no longer prioritize individual accomplishment over a genuine commitment to critically interrogating the truth within the framework of the law.

The Law Review spoke as an institution to reject Eghbariah’s article. That is the truth of the matter, and we participated in a democratic vote to uncover that unfortunate truth.

However in the extraordinary process of revoking publication of this piece, which would have been the first ever written by a Palestinian author in the Law Review, there is another truth: that there can be no “reviewing” of the law within an editorial framework that silences warnings of genocide, and indeed Nakba.

Hina Uddin is a third-year student at Harvard Law School and an editor of the Harvard Law Review.

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