The Choices of War: Hamas Using Kidnapped Israelis as Human Shields, What Should Israel Do?
by Alan M. Dershowitz • October 16, 2023 at 4:30 pm
Israel has a right under international law to prefer preventing the deaths of its own civilians over inadvertently causing the deaths of enemy civilians.
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.
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.
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 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.
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.
