Harvard Law Review Blocks Article About Genocide in Gaza

A week after Hamas’s October 7 massacre, by which time Israel’s all-out assault on Palestinians in the Gaza Strip had killed thousands of civilians, the online editors of the prestigious Harvard Law Review reached out to Rabea Eghbariah.

The two online chairs, as they are called, had decided to solicit an essay from a Palestinian scholar for the journal’s website. Eghbariah was an obvious choice: A Palestinian doctoral candidate at Harvard Law School and human rights lawyer, he has tried landmark Palestinian civil rights cases before the Israeli Supreme Court.

Eghbariah submitted a draft of a 2,000-word essay by early November. He argued that Israel’s assault on Gaza should be evaluated within and beyond the “legal framework” of “genocide.”

In line with the Law Review’s standard procedures, the piece was solicited, commissioned, contracted, submitted, edited, fact checked, copy edited, and approved by the relevant editors. Yet it will never be published with the Harvard Law Review.

Following an intervention to delay the publication of Eghbariah’s article by the Harvard Law Review president, the piece went through several committee processes before it was finally killed by an emergency meeting of editors. The essay, “The Ongoing Nakba,” would have been the first from a Palestinian scholar published by the journal.

In an email to Eghbariah and Harvard Law Review President Apsara Iyer, shared with The Intercept, online chair Tascha Shahriari-Parsa, one of the editors who commissioned the essay, called the move an “unprecedented decision.”

“Let’s not dance around it — this is also outright censorship. It is dangerous and alarming.”

“As Online Chairs, we have always had full discretion to solicit pieces for publication,” Shahriari-Parsa wrote, informing Eghbariah that his piece would not be published despite following the agreed upon procedure for blog essays. Shahriari-Parsa wrote that concerns had arisen about staffers being offended or harassed, but “a deliberate decision to censor your voice out of fear of backlash would be contrary to the values of academic freedom and uplifting marginalized voices in legal academia that our institution stands for.”

Both Shahriari-Parsa and the other top online editor, Sabrina Ochoa, told The Intercept that they had never seen a piece face this level of scrutiny at the Law Review. Shahriari-Parsa could find no previous examples of other pieces pulled from publication after going through the standard editorial process. Another editor, who spoke on the condition of anonymity, echoed the view that Eghbariah’s treatment is unprecedented.

The anonymous editor said that, based on their research, Israeli scholars had been well represented in the pages of the magazine, but not Palestinians. The editor also said that they could find no previous examples, based on their research, of a publication-ready article being pulled.

In one of his responses to the editors, Eghbariah wrote, “This is discrimination. Let’s not dance around it — this is also outright censorship. It is dangerous and alarming.”

According to emails shared with The Intercept, as well as Shahriari-Parsa and Eghbariah’s accounts, Iyer at first delayed the essay’s publication over what she said were safety concerns and the desire to deliberate with editors. According to an email from Shahriari-Parsa to the author, however, Iyer also said in meetings that “she was personally unwilling to allow the piece to be published.” (Iyer responded in the email chain with Eghbariah that there were “numerous inaccuracies” in the rejection email, claiming the story had gone through the normal process and that the piece had been rejected based on the requested publication timeline.)

Following requests from over 30 editors, an emergency meeting of the entire journal body was called. After nearly six hours, the more than 100 editors voted anonymously on running the piece or not, with a strong majority voting against publication.

“Like every academic journal, the Harvard Law Review has editorial processes governing how it solicits, evaluates, and determines when and whether to publish a piece,” the Harvard Law Review said in a statement. “An intrinsic feature of these internal processes is the confidentiality of our 104 editors’ perspectives and deliberations. After a full body meeting and vote of the entire membership last week, a substantial majority voted not to proceed with publication.”

Entirely run by students — Iyer and Shahriari-Parsa, like Eghbariah, attend Harvard Law School — Harvard Law Review is a well-known launch pad for estimable legal and political careers. Barack Obama was the journal president during his time at the law school, and graduates regularly go on to clerkships with Supreme Court justices and jobs at top-tier law firms. With careers potentially on the line, the Harvard Law Review’s decision on Eghbariah’s essay came amid a crackdown in academia, in Ivy League schools and elsewhere, against pro-Palestinian speech following the October 7 Hamas attack and Israel’s subsequent onslaught against the Gaza Strip.

“I can only speculate about the reasons of individual editors,” said Ryan Doerfler, a law professor at Harvard who attended a meeting with Law Review staff about the Palestine article. “What I can observe, though, is that the vote took place amidst a climate of suppression of pro-Palestinian advocacy.”

A second editor who asked for anonymity to speak freely about the process said that fear of backlash played a key role in their personal decision to vote “no” on Eghbariah’s piece. The editor said they found “substantive flaws” in the piece that were exacerbated by a fear among editors that they would have their names and faces plastered on billboard trucks around campus accusing them of being Hamas supporters — something that happened to pro-Palestine Harvard students who signed a controversial open letter.

The editor said substantive flaws are generally removed from pieces prior to publication, but they did not feel such edits would have been possible in this case because of the lack of agreement on underlying facts. “Reasonable scholarly debate couldn’t happen in that context,” they said. “Partly because we’re not at a point in time where that debate can happen without your face being put on a truck.”

Doerfler praised Eghbariah’s draft amid that climate of fear. “It is a forceful piece of legal scholarship,” he said, “and it articulates a position that takes real courage to put forward.”

Eghbariah’s article was published Tuesday night at The Nation, under the headline “The Harvard Law Review Refused to Run This Piece About Genocide in Gaza.”

“Threatens Academic Freedom”

For some of the more than 100 editors at the Harvard Law Review, the delay and subsequent killing of Eghbariah’s piece did not hew to the usual process. In a forthcoming public statement viewed by The Intercept, 25 Harvard Law Review editors objected to the move to squash the essay.

“We are unaware of any other solicited piece that has been revoked by the Law Review in this way,” the editors wrote. “This unprecedented decision threatens academic freedom and perpetuates the suppression of Palestinian voices. We dissent.”

In an interview, the first anonymous Law Review editor told me that they have evaluated “hundreds of submissions” for the journal and that Eghbariah’s essay is “more than just ‘good enough.’” Both this editor and Shahriari-Parsa said that they believe the primary reason for the “no” votes was fear.

“Editors expressed that they supported the piece and wanted to uplift marginalized voices,” the second editor said, “but were voting against publishing it because they were afraid of the consequences and had worked too hard to now risk their futures. Some also expressed concerns that the blowback to the piece would discriminatorily target editors of color more than others.”

Students, writers, and artists speaking out for Palestinian liberation are facing extreme levels of censorship and censure — especially in academia. Columbia University and Brandeis University have suspended the campus chapters of Students for Justice in Palestine and Jewish Voice for Peace on spurious grounds of violating campus protest policy and risks to campus safety. Florida Gov. Ron DeSantis ordered public universities to shut down chapters of the groups. Harvard, too, has faced pressure from major donors to crackdown on pro-Palestinian speech. Students have been doxxed and harassed for writing a letter in the aftermath of October 7 saying Israel’s longtime oppression of Palestinians was “entirely responsible for all unfolding violence.”

“The Law Review specifically had just gone through an incident in which one of its members was doxxed after participating as a safety marshal at a ‘die in’ at the Harvard Business School campus organized by student activists,” said Doerfler, the professor. Doerfler, who had been brought into a meeting with Iyer, Eghbariah, and two Review editors on November 14 to discuss Eghbariah’s essay, said the editor who participated in the “die in” protest has been publicly criticized by a major university donor “as part of his broader criticism of the University’s handling of the crisis.”

“This is exactly the kind of work that good international legal scholarship should do.”

In the essay, Eghbariah argues that the atrocities in Gaza amount to genocide; he considers the frames used to name Israeli policies in Palestine more broadly and calls for a distinctive legal framework for Palestine. According to Eghbariah, just as “the South African experience brought ‘Apartheid’ into the global and legal lexicon,” the distinctive nature of the domination Palestinians have faced should demand a new category of crime: “Nakba,” the word Palestinians use to describe their dispossession and expulsion at the founding of the state of Israel.

Yale Law School professor Aslı Bâli, an international and human rights law expert who said she has never met or worked with Eghbariah but was sent his essay and aware of the Harvard Law Review situation, said in an interview that the article constituted an “excellent piece of legal scholarship.” She noted that the essay’s arguments are no doubt contested, as is the nature of legal argumentation. “This is exactly the kind of work that good international legal scholarship should do,” she said.

Bâli told The Intercept that in her “quarter century” of experience in legal scholarship, she has never heard of a contracted article, which has gone through the editorial process, being pulled before publication. She said, “I’ve never heard of anything of this sort.”

Update: November 22, 2023
This story has been updated to include a reference to the publication of Eghbariah’s essay in The Nation late Tuesday evening.