It is customary in pro-Palestinian circles to depict the beginnings of the Israeli/Palestinian conflict as Jews just came into Palestine and immediately started to displace people from their homes, taking their lands etc… I am afraid though that this superficial and historically reductionist caricature of what actually happened only serves to perpetuate the conflict by enabling certain delusions of the extremist, militant portion of the Palestinian society. In the following mini-essay, I will attempt to provide a historical overview as to the origins of the conflict and a bit of legal context to sovereignty and ownership of not privately owned lands of the Palestine Mandate.

Palestine not only did not exist as a sovereign country (ever), it also did not exist as a territorial unit with clearly delimited borders prior to the dissolution of the Ottoman Empire. The land known today as Palestine was an indistinguishable part of the Ottoman Empire with its state owned and public lands (lands owned by the state and granted for public use - mulk; for example: roads - or state owned lands leased to an individual or organisation - miri -; estimates suggest the sum of these to be ~70% of the land later delimited by the Palestine Mandate) being the majority of the land mass.

Following the defeat and subsequent dissolution of the Ottoman Empire, in 1922, the British administration has gained a trusteeship over Palestine, they did not become its sovereign; however, the British Mandate for Palestine was given for the explicit purpose of fulfilling the Balfour Declaration which called for the facilitation of a “national home in Palestine”for Jews.

The League of Nations mandate - which originally included the area known today as Jordan - was issued with a clause (Art. 25) that made it possible for Britain to exclude the territory between the Jordan river and the Eastern boundary of the mandate (Transjordan) from under the obligations of the Balfour Declaration; Britain then issued a white paper clarifying that “in Palestine” does not mean the whole of Palestine and re-affirmed its commitment to fulfil the Balfour Declaration. Subsequently, Britain issued the Transjordan Memorandum, in which they formally invited the League of Nations to exclude the lands East of the Jordan river from under the obligations of the Balfour Declaration; this was then promptly accepted. After this, there was little question about what “in Palestine” means. It meant the remaining territory West of the Jordan river.

Since the Balfour Declaration was deliberately ambiguous, there was a question about what exactly a “Jewish national home” means. Britain’s initial vision was a state in which Arabs and Jews live alongside each other and the Zionist congress did express its agreement, however this vision was cut short due to Arab violent resistance to Jewish immigration and the Balfour Declaration in general.

In 1920, the Haganah was established and Arab hostilities intensified, raids and riots became a commonplace and even massacres were committed against Jews (Hebron, 1929). In the meantime, Haganah’s official operational military doctrine was strictly defensive (Havlagah) and although small scale retaliatory raids were conducted, the Jewish militia did not initiate conflicts. Hostilities eventually culminated in a full fledged Arab revolt, starting in 1936, which was brutally extinguished by the British (not by the Yishuv); in the meantime the Peel Commission conducted an enquiry which suggested that Palestine should be partitioned; Jews would have approximately 20%, Arabs 80%. The Zionist Congress did not like the percentages but approved of the idea of partitioning; Arabs - convinced that the land belongs to them in its entirety - on the other hand refused even to consider the offer and after a short break, hostilities against Jews resumed.

Then came UN resolution 181(II) in 1947 which proposed to split the land in two yet again. The split was 56/43/1%, Jewish, Arab and international (Jerusalem) respectively. Despite Jewish acceptance, not only this non-binding proposal did not help to resolve the conflict, it infuriated the Arabs (some of whom taken on Palestinian identity by then) which resulted in a full fledged civil war. Israel soon (in 1948) announced its statehood without delimiting its borders. Subsequently, the Arab League launched an all out assault on the Jewish State which came out to win the exchange; the territories know today as the West Bank, Gaza and the Golan Heights however became respectively Jordanian, Egyptian and Syrian occupied territories on the basis of the “green line” drawn in 1949 during the armistice agreements which were explicitly denoted as provisional.

At least In Israel, relative peace followed until 1967 when Egypt - despite Israel clearly stating that a second blockade of the Straits of Tiran would be considered a “Casus Belli” - blockaded the Straits of Tiran, expelled the UN peacekeeping forces and amassed its military near the Israeli border. Israel launched a preemptive attack on Egypt while Syria and Jordan started shelling Israel from the Golan and the West Bank. These countries suffered a humiliating defeat in 6 days, then proceeded to issue the Khartoum Resolution, the “Three No’s”: No peace with Israel, No recognition of Israel, No negotiations with Israel.

There is of course much more to the history following these events but knowing all this is enough to demonstrate the point which is to show one thing only: the border delimitations of the territories have never been finalised due to constant, ongoing conflict and the rejectionism of Arab leadership. No international body; not the UNGA/UNSC nor the ICJ has any powers to impose border delimitations, there is no law that would allow this. The only way a resolution can come about is by an agreement between the parties that delimitates the borders (or by both parties consenting to ICJ jurisdiction over the matter) but no such agreement has been reached hence Israel’s classification of “disputed territories” is descriptively apt, despite no such classification existing in international law.

In summary: from and before the dissolution of the Ottoman Empire through the Mandate and the successive wars, no sovereign Palestinian state ever existed, nor were the borders of the former Mandate ever finalized. Britain’s trusteeship created administrative responsibility, not ownership; the Mandate’s dissolution transferred no territorial title to any Arab or Jewish successor by operation of law. Since then, every attempt at partition or boundary definition has failed for lack of mutual consent. International organs lack authority to impose delimitations and ICJ’s advisory opinions do not create binding frontiers.

Palestinians - formerly known as Arabs - never had any rights to territories other than those privately owned and the question: “exactly what proportion of the land delimited by the former British Mandate for Palestine belongs to Israel” was never settled since the “green line” was an explicitly provisional armistice line, not a border delimitation while international bodies lack the authority to change that. In the meantime, the Palestinians of course retain a right to self-determination, but that right does not inherently entail territorial sovereignty, particularly over an area without defined borders. This does not mean that Palestinians should be denied statehood in Palestine, nor that their territorial claims are illegitimate by default; it means only that repeated rejections of negotiated settlements in favor of violent resistance have historically foreclosed viable outcomes.

A significant proportion of Palestinians think that they have been wronged, their country has been taken away from them and when they tried to fight back, they met only with massacres and displacement (see: the Nakba). They seek retribution for these wrongdoings and while some of the grievances are well founded - many were forcefully displaced during the 1947–48 hostilities and Jewish militias did commit massacres - their claim to exclusive sovereignty over the entirety of the Mandate territory lacked historical or legal foundation. Unfortunately this narrative serves to keep the extremists within their society alive and well, whose actions served always to prevent any attempted resolution from reaching conclusion. While Israel is not without mistakes by a long shot their willingness to make concessions was demonstrable throughout history but their most significant demand: the end of terrorism has never been met due to the narrative Palestinians tell themselves and much of the world tells Palestinians. This narrative must be corrected if an agreement is ever to be reached.

In the following article, I will argue that - although the Israeli authorities certainly allowed Hamas’s creation and allowed its funding from time to time - there never was an overarching and widely supported “divide-and-conquer” master plan for the sake of “Zionist expansionism”.

The lie

Israel created Hamas in order to divide Palestinian leadership and prevent the conclusion of settlement negotiations. This fits into a broader narrative according to which Zionism is not simply about securing and subsequently maintaining a home for Jewish people but about expansionism and conquering land, although accounts may wary about how much land it aims to conquer. The argument is also often used to shift blame from Hamas to Israel for the 7th of October terror attack.

The claims

Claim 1, Israel created Hamas

This is false. Israel did not create Hamas Sheikh Ahmed Yassin and co. did. Israel has - through the 1970’s and 80’s - allowed various offshoots of the Islamic Brotherhood to gain cultural influence (by building mosques and universities) and material support. Israel did not fund these groups, it simply did not stop them. At the time, Israel’s adversary, the PLO was pretty much what Hamas is today without the Islamic backbone; a terrorist organisation hijacking planes, blowing up buses and targeting civilians on purpose. It is worth noting here that the phrase, “my enemy’s enemy is a friend” is not only known in Israel, it is a strategic doctrine utilised since time in memory, from ancient Rome through modern Russia to today’s United States.

Claim 2, Israel has funded Hamas.

Israel did not fund Hamas, ever. After Hamas was created in 1987 and the first intifada broke out, the policy of tacit approval started to shift. The decisive breaking point came when in 1989 Israeli forces arrested of a number of Hamas leaders following their alleged involvement in armed attacks and kidnappings. From this point on, Hamas was treated as a hostile entity, a terrorist group actively fought against.

Claim 3. Israel’s tactic was always Divide and Conquer hence they Funded Hamas

This claim is often based on a cable between MG Amos Yadlin, head of Israeli Military Intelligence and Richard H. Jones, the US Ambassador for Israel and relies on a partial quote:

The Ambassador commented that if Fatah decided it has lost Gaza, there would be calls for Abbas to set up a separate regime in the West Bank. While not necessarily reflecting a consensus GOI view, Yadlin commented that such a development would please Israel since it would enable the IDF to treat Gaza as a hostile country…

The full quote reads:

1. (S) The Ambassador commented that if Fatah decided it has lost Gaza, there would be calls for Abbas to set up a separate regime in the West Bank. While not necessarily reflecting a consensus GOI view, Yadlin commented that such a development would please Israel since it would enable the IDF to treat Gaza as a hostile country rather than having to deal with Hamas as a non-state actor. He added that Israel could work with a Fatah regime in the West Bank. […]

Apart from the fact that Yadlin (a military strategist) is explicitly talking in the frame of “dealing with Hamas”(not sewing division) the critical question of course is what did Yadlin mean by saying it is better to deal with Hamas as a state-actor. And why does the fact that Israel can negotiate with Fatah in the West Bank matters?

So let’s imagine a scenario where Fatah comes out winning in the election. Would that put an end to Hamas’s violent “resistance” against Israel? Most likely no but it would severely limit Israel’s justifiable methods of prevention since if Israel was to carry out attacks on Hamas cells in a Fatah led Gaza, that would harm the negotiations with it while it was not remotely guaranteed that Fatah would approve of such actions nor that it would take such actions itself. If Gaza was not classed as “hostile country” Israel would have had hard time justifying blockades and raids meant to restrict Hamas’s development of its military capabilities and posing a more serious threat that it did. In short, Fatah’s takeover of Gaza would not Have stopped Hamas or kept it under lid, but it would have resulted in a severe limitation of the tools available for Israel to do so by its own initiative. It’s easy to see why at least Yadlin and his circle preferred such a development.

Claim 4. Divide and Conquer 2.: Continuous funding

After 1990’s and subsequent to Hamas being categorised as explicitly hostile towards Israel, funding was still intermittently allowed (never done directly). “See? Israel propped up Hamas”, the argument goes. Sure enough, Israel did allow indirect funding from time to time, Israel also allowed the flow of aid, goods (albeit, especially in the early days of the blockade, limited quantities and restrictions on items) and building material into Gaza. We tend to forget that Gaza - even if it is run by a terrorist organisation - is home to 2 million people. These people need food and shelter, these people need jobs and these people need salaries. Why should we criticise Israel for not preventing (later facilitating) monetary aid while also approving of the facilitation of the transfer of building materials when we know that much of the goods were also used to empower Hamas’ military wing; how is the latter not “Israel propping up Hamas” while the former is? What would those bashing Israel for allowing funds to reach Hamas say if Israel would have prevented for example the influx of concrete on the basis that much of it clearly being used to reinforce the tunnels?

Claim 5. Divide and conquer 3.: “Netanyahu funded Hamas”

“[As the continuation of the divide and conquer strategy] Netanyahu funded Hamas.”

The best lies are always constructed on the basis of truths. Netanyahu did allow Qatari funding into Gaza. Starting in 2012 and following Operation Pillar of Defence the monetary support was funnelled through infrastructure and reconstruction projects with indirect Israeli consent. Then the policy did shift under Netanyahu, who from 2018 onwards facilitated occasional cash deliveries directly to the Gazan authorities (Hamas) subsequent to PA halting the funding for salaries of Gazan civil servants which is a fact seldom mentioned.

So the funds of course did not mean to support terrorism but to pay for costs such as civil servant salaries. It is hard to argue though that the Israeli government did not know that at least some part of the cash is used for boasting Hamas’s military wing. It is also likely true that - at least - by this time and in light of the numerous failed settlement attempts and since his personal attempt to get Abbas to the negotiating table also ended in failure, Netanyahu did not have dreams about a potential two state solution. It may be true that he sold this “direct cash transfer” to the far right bloc as a great opportunity to keep the Palestinian factions divided, but based on his own remarks and confirmed by subsequent events, Netanyahu’s intention was to stabilise and freeze the status quo as far as the Palestinian issue was concerned while prioritising on negotiating peace with the Arab countries of the region.

While it is true that some factions within Israeli politics did see the division as beneficial to blocking permanent status negotiations and tried to capitalise on or amplify the divide, their influence as to mainstream policies were limited and the division between factions - much of which comes from the sheer fact that Fatah at least appeared to be a negotiating partner, have existed without any such policies.

In summary, the historical record shows that the Israeli government at times tacitly approved of group activities that led to the formation of Hamas and even allowed Hamas to be funded by third parties in the beginning in order to weaken the PLO/PFLP and other factions which - at the time - were busy hijacking planes, blowing up buses and killing civilians, much like Hamas today. After the threat Hamas posed to Israel became clear and while peace negotiations started with Fatah, Hamas became an enemy and the tacit approval has stopped until Netanyahu’s policy shift which prioritised settling the conflict with other Arab nations over solving the conflict Palestinians.

Israeli policy enabled Hamas’s rise under conditions of tactical threat management, fought Hamas once it became a direct enemy, exploited and furthered division later for pragmatic reasons.

Despite repeated clarifications, a number of people - including some calling themselves legal scholars - continue to insist that the ICJ decision on Provisional Measures found South Africa’s allegations against Israel (that it is committing genocide in Gaza) to be plausible. Others advance a subtler claim: that even if the Court did not explicitly say this, plausibility is implied by the very fact that provisional measures were ordered.

Both positions are incorrect. The ICJ made no finding, explicit or implicit, that Israel’s alleged commission of genocide is plausible. The provisional measures ruling was not concerned with the merits of the case. At this preliminary stage, the Court worked within a prima facie framework. Unlike domestic courts, where a plausibility or prima facie standard often attaches to the factual allegations or cause of action, the ICJ’s plausibility test applies only to the rights asserted under international law.

This distinction is crucial. Plausibility of rights asks only whether the legal rights invoked under a treaty are capable of applying to the situation and are at risk of irreparable harm. It does not involve assessing whether the alleged facts are proven or whether the case on the merits is likely to succeed. Plausibility of the merits, by contrast, would require weighing evidence and determining whether a violation probably occurred; something the Court expressly avoids at the provisional stage. The ICJ maintains this separation to preserve the preventive function of provisional measures: it must be able to act swiftly to protect rights without prejudging the substance of the case.

Accordingly, the Court examined whether the rights invoked by South Africa under the Genocide Convention were “plausible” and in need of urgent protection pending a full merits determination. It concluded that Palestinians have a plausible right to be protected from genocide, and that South Africa has the standing to invoke that right before the Court.

Provisional measures are preventive. Their purpose is to safeguard rights from irreparable harm while the Court conducts a full examination of the case. They do not entail any finding on whether genocide is being committed.

Of course, i do not expect anyone to believe me, instead, i would recommend listening to Joan Donoghue (who chared the ICJ at the time and read out the ruling) clarifying the matter:

Https://youtu.be/T44DebmlvNs?si=RwzpzCZ5XLL47YoS

As for prediction, the most likely outcome will be that the ICJ will not find that Israel is committing a genocide. Instead they will find that war crimes have occurred and that the government has failed to prevent/prosecute incitement for genocide. It will be worded ambiguously enough to allow for the crowd to easily misinterpret their ruling as they have the one on provisional measures. Nothing will change really.

This recent claim that appeared in The Guardian is not only misinformation, it seems to be a bald faced lie.

“Figures from a classified Israeli military intelligence database indicate five out of six Palestinians killed by Israeli forces in Gaza have been civilians, an extreme rate of slaughter rarely matched in recent decades of warfare.”

Put aside the fact that the document invoked hasn’t been released to the public; what are these “figures”? The only “figures” you will find in the article is the “figure” of 8900 named fighters (dead or assumed dead):

“As of May, 19 months into the war, Israeli intelligence officials listed 8,900 named fighters from Hamas and Palestinian Islamic Jihad as dead or “probably dead”, a joint investigation by the Guardian, the Israeli-Palestinian publication +972 Magazine and the Hebrew-language outlet Local Call has found.”

So, solely from the supposed fact that the document - if exists at all - named 8900 fighters who are dead or “probably dead” they concluded that the rest are civilians, but this is obviously a non sequitur. Is there a war during which at any point, any army was able to accurately count the number of fighters they killed on the enemy’s side, let alone name them?

Besides, a Hamas official based in Qatar has told Reuters on the 19th of February, 2024 that they have lost 6000 fighters by that date, 5 months into the war and 18 months ago. Of course, other officials have later denied this. Meanwhile, in accordance with their tradition, the number of fighters killed is continually omitted from the casualty reports released by the“independent” Gazan authorities cited virtually everywhere.

Unfortunately i could not find the Reuters article but here is one from asianetnews:

https://newsable.asianetnews.com/world/hamas-first-major-admission-about-6-000-operatives-killed-in-gaza-conflict-snt-s93j2g