The long-practiced Hamas strategy of using Palestinian children and other civilians as human shields raises the important and old moral issue of weighing the lives of enemy civilians against the lives of one's own civilians and soldiers. Even if some of the Palestinian "civilians" are not entirely innocent, and even if their deaths were unintended and collateral to legitimate military objectives, they are tragic. Israel has a right under international law to prefer preventing the deaths of its own civilians over inadvertently causing the deaths of enemy civilians.
No such moral calculus is available to measure the cost to Israel of inadvertently causing the deaths of its own citizens who are illegally and immorally being used as human shields by Hamas, in Israel's legitimate efforts to prevent future attacks to its civilians and current attacks on its soldiers. This is more a tactical than a moral issue, though it contains elements of both. But it involved complex decisions that Israel alone is entitled, indeed obligated, to make. No international law or claims of universal morality have a say, because the balance here is between the lives of Israeli hostages and other issues.
How then should Israel weigh the lives of the hostages against those of its soldiers and its future civilian victims? There is no clear answer provided by history, morality, military tactics or any other body of knowledge and experience. But a few generalizations may be relevant and instructive.
The lives of a country's civilians are valued more than military lives. This is because the role of the soldier includes risking his or her life in the interest of protecting civilians. This may not be as obvious in a nation like Israel with near-universal conscription. These and other micro-questions do not detract from the macro-answer that when a tragic choice must be made between the life of a soldier and a civilian, all other things being equal, the civilian life should be preferred.
But all things are never equal, especially in the fog of war, or even in the planning of war from a headquarters distant from the battlefield. Tactical and strategic considerations may require the sacrifice of civilian lives. The story of Winston Churchill's decision regarding the German bombing of Coventry whether completely true, partially true, illustrates the dilemma.
Historians have long debated whether Churchill was aware of but refused to warn the residents of Coventry to get out of the way of the Luftwaffe bombing that caused 507 civilian deaths, because such a warning would have disclosed to the Germans that the British had cracked Germany's Enigma code. This disclosure would have caused the deaths of many British soldiers who were relying on intelligence secured from Enigma, which would have dried up if the Germans knew it was compromised.
Of course, every civilian death in Coventry was entirely the fault of the Nazis, legally, morally and politically, just as every death to an Israeli hostage used as a human shield would be the fault of Hamas, regardless of who actually fired the fatal shot. But this doesn't solve the problem for Israeli policymakers, generals or soldiers of how much risk to their own civilian hostages should they be willing to take to achieve their legitimate military goals.
To paraphrase Yitzhak Rabin: Israel should try to negotiate the freedom of hostages as if there were no ground war, and should pursue the ground war as if there were no hostages. The latter is a lot more difficult to accomplish than the former because Hamas' unlawful use of Israeli civilian hostages imposes logistical restrictions on the military options available on the ground.
The bottom line is that Israel should be free to strike whatever balance it seems appropriate. It will , of course, do everything it can to preserve the lives of the hostages, while Hamas will do everything it can to use the hostages as weapons against the Israeli military. It will not be easy but it must be done.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School, and the author most recently of Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute, and is also the host of "The Dershow" podcast.
Edward C. Stengel