3 December 2023


Dear Prime Minister, Minister for Foreign Affairs, Minister for Defence and Attorney General   


Fog descends on Israel-Hamas war

We, the undersigned Australian legal practitioners and legal academics dedicated to the rule of law, are concerned about the incorrect application of the law of armed conflict and other relevant international laws as a means to delegitimise Israel and diminish her legal right to self-defence in the current conflict with Hamas, a designated terrorist organisation.[1] 


We do not intend in this letter to diminish the undeniable human suffering that has been and will continue to be caused by the conflict. The images and reports coming out of Gaza are heartbreaking, and we recognise the pain and anguish of those who have been injured and lost loved ones, including entire families in their homes. It is impossible not to feel sympathy and compassion in the face of a human tragedy of that magnitude.


However, we also recognise that such suffering is a regrettable but unavoidable consequence of an armed conflict against a group such as Hamas, which deliberately places its people in the line of fire by using civilian infrastructure for military purposes. On 6 October 2023, there was a ceasefire in place. On 7 October 2023, Hamas engaged in a sadistic and depraved rampage, indiscriminately murdering over 1,200 innocent civilians in Israel - including babies and young children, elderly people, Jews and non-Jews alike - as well as comitting reprehensible acts of torture and sexual violence, and taking approximately 240 people hostage, most of whom were non-combatants. 


As we explain below, Israel has a right under international law to defend herself against the threat posed by Hamas, including by taking such military action as is necessary to ensure that Hamas is unable to repeat the atrocities it committed on 7 October 2023. The undoubted suffering that this necessarily causes in Gaza (which Hamas no doubt anticipated when it planned and launched the 7 October 2023 operation) does not itself render Israel's actions illegal.


The letter sent to you 8 November 2023 although dated 3 November 2023 (the “8 November Letter”) by some members of the legal profession in Australia, makes allegations which cannot be allowed to stand uncorrected.


We address below only some of the false allegations in the 8 November letter, but sufficient to demonstrate the degree of error that suffuses the contents of the 8 November Letter. We urge the Australian Government to decline to rely on the 8 November Letter.


False allegation of disproportionality


The 8 November Letter assumes that the conflict between Israel and Hamas is an international armed conflict and on that basis acknowledges that:

attacks directed against legitimate military objectives are unlawful under customary international law if they breach the precaution or proportionality principles.


So much can be accepted as correct, but the 8 November Letter goes on to allege that:

[t]he sheer scale of the loss of life and injury in Gaza, particularly to women and children, together with the widespread damage to civilian objects and infrastructure indicates a clear breach of those principles.


This allegation errs in its application of the applicable international law.


The principle of proportionality requires the consideration and considered balancing of two factors in anticipation of each attack, being (1) the incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which the attack may be expected to cause and (2) the concrete and direct military advantage that is anticipated.[2] 


Furthermore, the test of proportionality is a conduct-oriented test, not a results-oriented test.  It is assessed per attack, but not cumulatively as the above statement suggests by referring to the ‘sheer scale of the loss of life and injury in Gaza’.

That which is required is that a law-abiding combatant collect intelligence readily available to it in the circumstances before each military action and assess the proportionality of civilian collateral damage.


Accordingly, Israel’s tactical objectives are consistent with regular military practice under customary international law:

The military advantages that the IDF is seeking include destroying enemy military assets, targeting militants, degrading and denying enemy ability to command and control operations, neutralizing underground tunnels and infrastructure used for military purposes, and denying positions (such as sniper, anti-tank and surveillance posts) which endanger IDF ground forces, all of which contribute to the overall objective of securing the release of the hostages and removing Hamas’s capability to attack Israel and its citizens.[3]


Proportionality is always assessed from an ex ante perspective. As the Australian Defence Force Manual on the Law of Armed Conflict (ADDP 06.4 2006) at paragraph 8.36 states: [t]arget selection is based on current intelligence and information."[4] Quite simply, that which is not allowed “is intending to kill or injure civilians or attack an enemy target after determining the unavoidable civilian casualties will be excessive compared to the anticipated military advantage.”[5] 

In the jus ad bellum context, the principle of proportionality requires that any recourse to force in self-defence be limited to the objective of halting or repelling the attack and preventing a recurrence. Given the explicit threat of Hamas to repeat the atrocities it committed in Israel on October 7, the necessity of preventing a recurrence of those attacks justifies Israel’s ongoing use of force. What matters in this respect is the result to be achieved by the defensive action, and not the forms, substance and strength of the action itself, as Robert Ago, then President of the International Court of Justice stated:

The action needed to halt and repulse the attack may well have to assume dimensions disproportionate to those of the attack suffered. What matters in this respect is the result to be achieved by the defensive action, and not the forms, substance and strength of the action itself.[6]


As to any assessment of Israel’s compliance with the proportionality principle and alleged excessive casualty numbers, that assessment can be made only:

I have no notion that the Palestinians are telling the truth about how many people are killed. I’m sure innocents have been killed, and it’s the price of waging a war. … I have no confidence in the number that the Palestinians are using.[7]


The assessment is further complicated by the number of Palestinian misfired rockets (aimed at Israel) and the carnage they cause, as well as the consequential detonation of explosives held in Hamas terror tunnels.  The Hamas numbers do not account for this and make no distinction between Hamas combatants and Gazan civilians, nor do they exclude those killed by Hamas or the Islamic Jihad through their other military misadventures, nor the deaths of the very terrorists who launched this war on 7 October 2023. Likewise, Gazan casualty information published by UN agencies is unreliable due to its reliance on Hamas figures, and its demonstrable institutional bias against Israel.

One must keep in mind that there are very few analogues to the deep embedding of Hamas and Islamic Jihad in urban infrastructure, the extensive use of civilian shields and the high population density.


In summary, the 8 November letter contains errors in its application of legal principle and rests on unreliable Hamas data sources.


False allegation of targeting civilians


Concern expressed about targeting civilians arises as a consequence of the extensive use of civilian shields by Hamas. The 8 November letter fails to engage properly or at all with the international legal prohibition on the use of civilian shields.

The “State of Palestine” is a signatory to the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. Article 51(7) provides as follows:

The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations. [8]


The prohibition is also accepted in customary international law. The San Remo Manual on the Law of Non-International Armed Conflict ((§2.3.8) similarly provides as follows:

The use of civilians (as well as captured enemy personnel) to shield a military objective or operation is forbidden. It is also forbidden to use them to obstruct an adversary’s operations.


The illegal use of civilian shields complicates targeting and is a factor to be taken into account in assessing proportionality. UK Manual on the Law of Armed Conflict (§2.7.2) provides as follows:

Even where human shields are being used, the proportionality rule must be considered. However, if the defenders put civilians or civilian objects at risk by placing military objectives in their midst or by placing civilians in or near military objectives, this is a factor to be taken into account in favour of the attackers in considering the legality of attacks on those objectives.


As noted by Professor Michael N. Schmitt[9] and John J. Merriam[10] of the United States Naval War College, in “The Tyranny of Context: Israeli Targeting Practices In Legal Perspective” (2015):

During every round of hostilities in Gaza since Israel’s unilateral disengagement, Hamas has fought almost exclusively from among the civilian population. It employs both voluntary and involuntary (those taken to the target area or forced to remain there) human shields, conducts command and control from civilian homes, caches weapons in civilian property, often fails to wear uniforms or otherwise distinguish its fighters from civilians, prohibits or deters civilians from leaving areas likely to be targeted, and fires rockets from schools, mosques, United Nations facilities, and civilian residences.[11]


In short, it is the conduct of Hamas that places civilians in harm’s way, and it is that conduct which complicates the assessment of proportionality and the implementation of precautionary measures. These are duties that Israel discharges in an exemplary fashion.


False allegation that hospitals are immune even when misused as military bases


Article 52(2) of Protocol I defines a military objective (i.e. that which is able to be attacked) as an object which by its nature, location, purpose or use makes an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage. Customary international law applies a binary test as to whether a facility is either a military objective or a civilian object. Damage done to a military objective is not collateral damage even if the object has a ‘dual use’ for a civilian purpose. Applied in this case, any object that Hamas uses that effectively contributes to its war-fighting capability is a military objective.


The position under customary international law and Protocol I is that anything that is not a military objective is a civilian object that is to be protected. Additionally, Article 19 Geneva Convention I provides special protections to medical units and establishments and Article 18 of Geneva Convention IV provides protections to civilian hospitals. Article 19 Geneva Convention IV clearly states that a hospital loses its protected status if it is being used to commit, outside its humanitarian functions, acts harmful to the enemy after appropriate warnings have been given.


There is clear evidence to suggest that the hospitals are being used for military purposes, and the evidence does not support the allegation that protected healthcare factilities have been deliberately attacked by the Israel Defence Force. For example:


This of course is also the ISIL/ISIS model. Back in December 2016, Mosul Hospital was found to be a base of operations and command and control headquarters. The hospital was aerially targeted by the US-led coalition.[16] 


Israel was quickly blamed for bombing the Al-Ahli Arab Hospital on 10 October 2023, with reports attributing some 500 deaths to Israeli action. However, the report was demonstrably false: the damage was to an adjacent carpark, not the hospital, the number of dead was heavily inflated, and the objective evidence (including clear video footage) points to the cause being an Islamic Jihad rocket misfiring and causing the damage.[17] It is likewise unknown how many of the casualties in Gaza hospitals attributed to Israel have in fact been killed by the hundreds of rockets that fall short on their intended route to harm Israeli civilians.

Human Rights Watch, on 14 November 2023, which is relied upon at length in the 8 November Letter, continues to state on its website: “Unlawful Israeli Hospital Strikes Worsen Health Crisis.” Despite the mounting evidence of terrorist bases in and beneath Gaza hospitals, Human Rights Watch claims to be unable to corroborate that evidence. On the available evidence, the al Shifa Hospital complex was being used unlawfully by Hamas for military purposes against Israel, and therefore lost its protected status and was able to be targeted as a military objective. Such activity is plainly legitimate.


Notwithstanding its status as a military target, Israel did not bomb or destroy the hospital. The IDF issued appropriate warnings, then entered on foot risking their soldiers’ lives while minimising risks to civilians. They delivered humanitarian supplies, then facilitated the evacuation of patients and hospital staff who were in harm’s way.

The willingness of the 8 November letter to ascribe blame for damage to health facilities in Gaza is therefore likewise misplaced.


False allegation of inadequate precautionary measures


In calculating proportionality, Protocol I provides that military commanders must: “refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”(Art. 57(2)(a)(iii)[18]). This obligation has two facets: the prior assessment of anticipated collateral damage, and the prior implementation of measures to minimise such damage. Israel has been explicit in its adherence to these requirements, quite unlike Hamas.

Professor Geoffrey Corn, Chair of Criminal Law and the Director of the Center for Military Law and Policy at Texas Tech University School of Law explains that:

[any] assessment necessitates information related to the nature of the target, the military value of the target, the quality of the intelligence confirming the target, the implementation of civilian risk mitigation precautions, and the anticipated civilian risk. And when the enemy itself commits the war crime of human shielding – a pervasive Hamas tactic – the assessment is even more complicated.[19]


In relation to feasible measures to minimize civilian collateral damage, Protocol I requires the taking of “all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.”(Art. 57(2)(a)(ii)[20]).

The 8 November Letter criticises the warnings given by the Israeli military to civilians in the North of Gaza to leave their homes. Protocol I, upon which the authors of the 8 November Letter rely, provides in Article 57(2)(c) as follows:

effective advance warning shall be given of attacks which may affect the civilian population unless circumstances do not permit.[21]


Nation-States generally accept this rule as reflecting customary international law.

The giving of such warnings by Israel where its military targets are embedded in civilian locations demonstrates compliance with international legal obligations to minimise civilian casualties before bombing legitimate military targets.


None of this is recognised by the authors of the 8 November Letter. Nor do the authors cite any evidence to support their inference that Israel does not undertake the necessary assessments, no doubt because the evidence is that such assessments are routinely undertaken by the Israel Defence Force.

For example, Israel has cancelled airstrikes when civilians are seen in proximity to the target, even when the airstrike would be justified under international law, demonstrating Israel’s willingness to sacrifice tactical wins for humanitarian purposes.  On 9 November 2023, the IDF released a video of its officers aborting an airstrike on a terrorist target “based on existing intelligence” after spotting Palestinian children playing nearby.[22] 


False allegation of occupation and collective punishment


After rule by the Ottoman Empire ended there in World War I (1914–18), the Gaza area became part of the League of Nations mandate of Palestine under British rule. When the mandate ended, Egypt took over by force. Egypt administered Gaza through a military governor and used Gazan territory to launch terror attacks against Israel through to 1967.


During the six-day war in 1967, Israel took control of Gaza from Egypt. The Gaza Strip was handed over to Palestinian Authority control following the 1993 Oslo Accords, although Israel maintained a presence until it unilaterally withdrew its forces on 12 September 2005. At that time Israel also forcibly removed its citizens, and exhumed its dead, to hand over the entirety of Gaza to the Palestinian Authority.  


Quite simply, Gaza has not been occupied by Israel since 2005, and arguments based on Israel being a belligerent occupant are misconceived in fact.

An application of the effective control test required to qualify a territory as occupied under Article 42 of the Hague Convention shows that none of the requisite criteria are met: Israel has not had a permanent physical military presence in the Gaza Strip since 2005; it does not exercise governmental authority in the territory; and the Gaza Strip is in fact controlled by the Hamas terror organisation. It follows that the arguments based on Israel being a belligerent occupant of Gaza are also misconceived as a matter of law.[23]  This is so notwithstanding any partial blockade of Gaza by Israel (noting that Israel cannot block the Egyptian border with Gaza), and, as the Grand Chamber of the European Court of Human Rights determined in the Sargsyan case:  

[O]ccupation is not conceivable without 'boots on the ground' therefore forces exercising naval or air control through a naval or air blockade do not suffice."[24]


The 8 November letter contains a misconceived call for “‘an end to the occupation of Palestine” by Israel. In short, the occupation allegation in relation to Gaza is without merit.

Israel is engaged in an armed conflict with Hamas and has no obligation to provide supplies to Hamas. On 9 October 2023, Israel was accused of cutting off access by Gaza to food, water, electricity, fuel, and medical supplies. Within a few days after the water supply was cut off by Israel where Hamas had breached Israel’s southern border to carry out its massacres of civilians, Israel reopened 2 out of 3 available water pipes (one having been destroyed by Hamas). The reopening, several days after the attack, was acknowledged by White House National Security Advisor Jake Sullivan.[25] These pipes now supply 28.5 million litres of potable water a day, more than half the water previously supplied by Israel to Gaza.[26] 


As for electricity, Israel was supplying half of Gaza’s electricity before 7 October 2023. That was needed because Hamas prevented modernisation of the power grid. Although large sums in foreign aid were delivered to Hamas specifically to reconstruct the grid and build self-sufficiency, Hamas diverted the funds and left the grid in its dilapidated state. As Elai Rettig of the Begin-Sadat Centre for Strategic Studies on 16 October 2023 pointed out:

During peacetime, Israel provides Gaza with diesel from the oil refineries in Haifa. Hamas also sometimes purchases more expensive diesel from Egypt that is carried by truck. Israel has announced that it has also blocked the Egyptian route, which puts a tight timeline on Gaza’s ability to continue to generate its own electricity. When Israel announced the supply cut, Hamas announced on the same day that the Gaza power plant had run out of diesel and was shut down. This is highly unlikely since the power plant operates with no fewer than four days’ worth of diesel in storage and can hold up to two weeks’ worth. If the power plant ran out of diesel so soon into the operation, it means Hamas depleted the reserves. This in turn likely means the diesel was diverted to Hamas bases to allow their generators to last longer, but it comes at the expense of the population.[27]


Food and medical supplies enter Gaza from Egypt, as agreed with Israel.  In the 8 November Letter, there is an allegation that attacks by Hamas on Israel “can never justify the collective punishment of the Palestinian people”.  This allegation is sourced in a misstatement made by the UN Secretary-General. There is even an allegation that Israel is engaging in “[t]he starvation of a civilian population as a method of warfare, including wilfully impeding adequate relief supplies.” Again, Israel is in fact itself supplying water and is enabling food and medical supplies from Egypt. Meanwhile, according to the New York Times reporters:

Hamas has hundreds of thousands of gallons of fuel for vehicles and rockets; caches of ammunition, explosives and materials to make more; and stockpiles of food, water and medicine, the officials said. A senior Lebanese official said Hamas, which is estimated to number between 35,000 and 40,000, had enough stocked away to keep fighting for three to four months without resupply.[28]


Laying the blame on Israel, given the actions of Hamas stockpiling to serve its own needs, diverting aid, preventing infrastructure development and, as in the case of theft of Hospital fuel noted above, diverting relief supplies, demonstrates a one-eyed approach to the causes of deprivation in Gaza.


Misguided calls for a permanent cease-fire and arms embargo

Israel is reluctant to agree to a permanent ceasefire because any ceasefire would enable Hamas to survive and rebuild which will inevitably result in renewed attacks on Israeli civilians. That much is clear. One only needs to consider the constant barrage of missiles launched by Hamas at Israel over many years, or the words of a senior Hamas’ leader, Ghazi Hamad, on 24 October 2023 on Lebanon TV, that Hamas intends to repeat the attacks of Oct 7 2023, “The Al-Aqsa Flood is just the first time and there will be a second, a third, a fourth time”[29]


Were action taken to remove rocket and missile launching capability from Hamas, and to prevent any rearming, a cease-fire could operate to protect civilians in Israel as well as in Gaza.


A false implication in the 8 November letter is that Israel is using military weapons and systems in breach of international law (for which there is no evidence) and that the supply of such should cease.  Israel would be left isolated and militarily paralysed; an outcome that would be met with cheers by Hamas, Hezbollah, Russia and Iran none of whom appear to show much regard for international law and human rights. Such isolation is a long-standing aim of all enemies of Israel but is not shared by her allies.


The need to free the hostages

As Jay Michaelson explained in the “Forward” on 15 November 2023:

Hamas has two sets of hostages: the 240 civilians and Israeli soldiers they kidnapped on Oct. 7, and the millions of Palestinians they have deliberately placed in harm’s way, either to deter Israeli attacks or to punish Israel in the court of public opinion when those Palestinian civilians are killed.[30]


Or as former Harvard Law Professor Alan Dershowitz both perceptively and presciently wrote back in 2009:

when a murderer takes a hostage and fires from behind his human shield, and a policeman, in an effort to stop the shooting accidentally kills the hostage, the law of every country holds the hostage taker guilty of murder – even though the policeman fired the fatal shot. The same is true of the law of war. The use of human shields, in the way Hamas uses the civilian population of Gaza, is a war crime, as is its firing of rockets at Israeli civilians. Every human shield that is killed by Israeli self-defence measures is the responsibility of Hamas, but you wouldn’t know that from watching the media coverage.[31]


The newly agreed short-term cease-fire begins to address the release of the hostages, but risks rewarding Hamas, placing Israel at risk of repeated acts of terrorism towards her own civilians, and again subjecting Gazan civilians to despotic rule by a terrorist organisation.


Conclusion

It is clear that the 8 November letter is fatally flawed, both factually and legally.

Israel has the right, indeed the obligation, to protect her population from terrorist attacks committed by the various terrorist groups that surround its borders, which include Hamas. We commend Professor Corn’s words as apt to describe the 8 November letter upon which no reliance can sensibly be placed:

when every attack is a war crime, when every measure taken to weaken Hamas is a war crime, when nothing Israel does is considered consistent with its rights and obligations under international law, the very notion of war crime loses meaning. One can be sympathetic to victims of war and troubled by the carnage of war. But war is quite often “lawful but awful,” and wanting something to be a war crime does not make it so.”[32]


We commend the Australian Government for having recently imposed counter-terrorism financing sanctions on eight persons and one entity in response to the acts of terrorism perpetrated by Hamas on October 7, 2023.[33]


We call on the Australian Government to:


We mourn the loss of every innocent life in this and any conflict. We pray and hope that the death and violence end soon, that families torn apart by the atrocities of 7 October and the war that followed are speedily reunited, and that a lasting peace ensues. 


Yours faithfully,



Professor Gregory Rose

Mark Leibler AC

Daniel Aghion KC

Adj Assoc. Professor David Knoll AM

Dr Alan Byron Berman, Dean of Law, Charles Darwin University 

Sam Tatarka OAM

The Hon Justice Philip Mandie QC (Ret.)

The Hon Justice Nigel Rein SC (Ret.)

The Hon Justice Selwyn Selikowitz (Ret.)

The Hon Paul M Guest OAM KC OLY (Ret.)

The Hon Francis Marks (Ret.)

Peter Braham KC

Maria Cinque SC 

Marc Felman KC

Michael Fleming KC 

Robert Goot AO SC

Robert Hay KC

Matthew Harvey KC

Jason Lazarus SC

Michael Odes KC

Jeremy Rapke KC, DPP Vic (Ret.)

Philip Solomon KC

Gregory A Sirtes SC

John Walker KC 

Professor Katy Barnett

Professor Paula Gerber

Professor Kathy Laster

Professor Danuta Mendelson

Professor Prue Vines

Professor John Zeleznikow

Adj. Assoc. Professor Adiva Sifris

Magistrate Susan Blashki (Ret.)

Magistrate Greg Levine (Ret.)

Rebekah Giles

Dr Roy Schonforf*

Dr Ann Wollner

Daniel Meyerowitz-Katz (Barrister), Daniel Mendoza-Jones (Solicitor), Eli Bernstein (Solicitor) and a further ~650 signatories as annexed.


[1]         By Australia, the United States of America, Canada, the European Union, and other States and organisations.

[2]         'Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I)' (opened for signature 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3.

[3]         Ministry of Foreign Affairs, ‘Hamas-Israel Conflict 2023: Key Legal Aspects’, gov.il (Web Page, 2 November 2023) <https://www.gov.il/en/departments/general/hamas-israel-conflict-2023-key-legal-aspects>

[4]         Australian Defence Doctrine Publication 06.4—Law of Armed Conflict, 11 May 2006. <https://www.onlinelibrary.iihl.org/wp-content/uploads/2021/05/AUS-Manual-Law-of-Armed-Conflict.pdf>

[5]         Geoffrey Corn, ‘When Everything is a War Crime, Nothing is a War Crime’, SMERCORNISH.COM (Web Page, 17 November 2023) <https://www.smerconish.com/exclusive-content/when-everything-is-a-war-crime-nothing-is-a-war-crime/>

[6]         Robert Ago, Addendum to Eighth Report on State Responsibility’ (1980) II(1) Yearbook of the International Law Commission 69-70.

[7]         Glen Kessler, ‘Biden’s dismissal of the reported Palestinian death toll’, The Washington Post (online, 1 November 2023). <https://www.washingtonpost.com/politics/2023/11/01/bidens-dismissal-reported-palestinian-death-toll/>

[8]         'Geneva Convention Relative to the Protection of Civilian Persons in Time of War,’ (opened for signature 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 (“Geneva Convention (IV)”), Article 51.

[9]         Schmitt is the Charles H. Stockton Professor and Director, Stockton Center for the Study of International Law, United States Naval War College; Professor of Public International Law, University of Exeter Law School; Fellow, Harvard Law School’s Program in International Law and Armed Conflict.

[10]         John J. Merriam is Associate Director for the Law of Land Warfare, Stockton Center for the Study of International Law, United States Naval War College:

[11]         Michael N.Schmitt and John J. Merriam, ‘The Tyranny of Context: Israeli Targeting Practices in Legal Perspective’ (2015) 37:1 U. Pa. J. Int’l L 53, 53. <https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1905&context=jil>  See also: Michael N.Schmitt, ‘Israel-Hamas 2023 Symposium – What is and what is not human shielding?’, Lieber Institute West Point (Web Page, 3 November 2023). <https://lieber.westpoint.edu/what-is-and-is-not-human-shielding>

[12]         Staff writers, ‘Israel at war: Israeli Defence Forces continuing ‘targeted’ search in Gaza’s al-Shifa hospital’, The Australian (online, 16 November 2023). <https://www.theaustralian.com.au/nation/world/idf-withdraws-from-hospital-arms-found/live-coverage/bf458c3492d3d4a28c7311c271436851>

[13]         'Israeli Army Releases Video of What It Says Is Hamas Tunnel at Al-Shifa Hospital' (Video, The Guardian, 20 November 2023) < https://www.theguardian.com/world/video/2023/nov/20/israeli-army-releases-video-of-what-it-says-is-hamas-tunnel-at-al-shifa-hospital-video >; Yonah Jeremy Bob, 'Israel-Hamas war: Jerusalem Post joins IDF in Gaza's tunnel underworld' (22 November 2023) The Jerusalem Post <https://www.jpost.com/arab-israeli-conflict/gaza-news/article-774624>.

[14]        Joe Barnes, ‘Hamas terrorists are ‘hoarding fuel to ventilate Gaza tunnels’’, The Telegraph (online, 26 October 2023). <https://www.telegraph.co.uk/world-news/2023/10/26/hamas-hoarding-fuel-ventilate-gaza-tunnels-israel/>

[15]         Nic Robertson, Rebecca Wright, John Torigoe and David Shortell, ‘Israel shows alleged Hamas ‘armoury’ under children’s hospital in Gaza. Local Health officials dismiss the claims’, CNN (online, updated 14 November 2023). <https://edition.cnn.com/2023/11/14/middleeast/israel-alleges-hamas-armory-under-hospital-in-gaza-hnk-intl/index.html>

[16]         WSJ Editorial Board, ‘The battle of al-Shifa hospital’, The Wall Street Journal published by The Australian Business Review (online, 15 November 2023). <https://www.theaustralian.com.au/business/the-wall-street-journal/the-battle-of-alshifa-hospital/news-story/468a0cc40c9b628cf16f0415fced3188>

[17]         See e.g., Michael Biesecker, ‘AP visual analysis: Rocket from Gaza appeared to go astray, likely caused deadly hospital explosion’, AP (online, updated 21 October 2023). <https://apnews.com/article/israel-palestinians-hamas-war-hospital-rocket-gaza-e0fa550faa4678f024797b72132452e3>

[18]         Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), publication date 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) art 57.

[19]         Corn, supra note 5.

[20]         Protocol I, supra note 18.

[21]         Ibid

[22]         Lt. Col. Richard Hecht, ‘‘Wait, there are children in the area" Exclusive Footage of an Air Strike Being Called Off, Mission Brief from LTC Richard Hecht (Official IDF Substack), (online, 8 November 2023).<https://idfspokesperson.substack.com/p/wait-there-are-children-in-the-area>

[23]         S.Schöndorf and Eran Shamir-Borer ‘The (In)applicability of the Law of Occupation to the Gaza Strip’ published in Hebrew, (2020) 43 TAU L.REV 403.

[24]         Sargsyan v. Azerbaijan - 40167/06 Judgment 16.6.2015 [GC]

[25]         Rebecca Picciotto, Annie Nova, Sam Meredith and Christine Wang,  ‘Iran warns war could expand; China says Gaza offensive is ‘beyond self-defense’, CNBC (online, 2 November 2023). <https://www.cnbc.com/2023/10/15/israel-hamas-war-live-updates-and-latest-and-news-on-gaza.html>

[26]         Jeremy Sharon, ‘Israel reopens second of three water pipelines into Gaza’, The Times of Israel (online, 29 October 2023). <https://www.timesofisrael.com/israel-reopens-second-of-three-water-pipelines-into-gaza/>

[27]         Elai Rettig, 'Cutting the Electricity Supply to Gaza – Consequences and Implications' (16 October 2023, Begin-Sadat Center for Strategic Studies) <https://besacenter.org/cutting-the-electricity-supply-to-gaza-consequences-and-implications/>. 

[28]         ‘As Gazans Scrounge for Food and Water, Hamas Sits on a Rich Trove of Supplies’: https://www.nytimes.com/2023/10/27/world/middleeast/palestine-gazans-hamas-food.html

[29]         'Hamas Official Ghazi Hamad: We Will Repeat The October 7 Attack, Time And Again, Until Israel Is Annihilated; We Are Victims – Everything We Do Is Justified' (Middle East Media Research Institute TV Monitor Project) <https://www.memri.org/tv/hamas-official-ghazi-hamad-we-will-repeat-october-seven-until-israel-annihilated-victims-everything-we-do-justified>. See also: Jerusalem Post Staff, ‘We will repeat October 7 again and again’ – Hamas Official’, The Jerusalem Post (online, 1 November 2023). <https://www.jpost.com/arab-israeli-conflict/article-771199>.

[30]         Jay Michaelson, 'Title of the Article' (15 November 2023, Forward Magazine) <https://forward.com/opinion/569913/al-shifa-hospital-gaza-hamas-israel/> .

[31]         Alan Dershowitz, ‘The criminal cynicism of Hamas’, The Guardian (online, 9 January 2009). <https://www.theguardian.com/commentisfree/2009/jan/08/hamas-dershowitz-israel-gaza> 

[32]         Corn, supra note 5.

[33]         Sanctions in response to Hamas terror attacks, 18 November 2023: https://www.foreignminister.gov.au/minister/penny-wong/media-release/sanctions-response-hamas-terror-attacks#:~:text=The%20Australian%20Government%20has%20imposed,exchange%20owned%20by%20one%20individual.