Will an Amendment to Israel's National Security Law Change the Rules of the Game?

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The constitutional authority over the use of force by the United States has been a subject of ongoing legal and political debates, including on Lawfare. There are disagreements about the proper scope of the powers of the president vis-a-vis Congress and regarding the proper scope of the congressional authorizations for the use of force. Some of the discussions are unique to the U.S., but the principled issues of the balance between the different branches of government in matters of national security and the proper mechanism to create accountability in these matters are universal. Recently, a public discussion over these issues has begun in Israel.

On Nov. 5, 2013, Israel's leading investigative television program Uvda (literally translated as “fact”) aired an episode chronicling Israel's attempt to halt the Iranian nuclear program. The following description is based on the facts that the program reports: Israel was aware of the Iranian nuclear program at least since 2002. Since then, Israel proceeded to act against Iran's nuclear program though several means: gathering of intelligence, covert Mossad operations against Iranian nuclear scientists, diplomatic efforts and more. In 2007, the then minister of defense, Ehud Barak, issued a directive to the Israel Defense Force to prepare optional plans for a direct aerial attack on Iran's nuclear installations. In 2010, Prime Minister Benjamin Netanyahu, Barak and then- Minister of Foreign Affairs (and current Minister of Defense) Avigdor Lieberman, ordered IDF Chief of Staff Gaby Ashkenazi and head of the Mossad Meir Dagan to undertake preparations for an attack on Iranian nuclear installations on a specific date. Dagan and Ashkenazi responded, according to the program, by claiming that Netanyahu and Barak are“trying to steal a war”without the approval of the government. At the end of the discussion, Ashkenazi declared that the IDF simply does not have the capacity to execute a successful attack, and his declaration to that effect, whether or not it was reported accurately, ended the discussion.

The reported encounter, assuming it indeed happened as reported, uncovers some of the basic deficiencies of Israel's national security constitution. While there is no real doubt about the fact that the Israeli armed forces and security organizations are subject to civilian control, it is quite unclear who actually performs the task of civilian control. Who has the power to order military operations? What is the role of the prime minister and the minister of defense in relation to the armed forces? For that matter, what, if at all, is the role of the Knesset, Israel's parliament, in Israel's national security decision-making? This post will briefly discuss these issues, as well as a recent legislative proposal tabled by the government designed to amend Israel's national security constitution.

Israel’s Laws of War-making

Basic Law: The Military, enacted in 1976, declares in Article 2 that:

2. (a) The Army is subject to the authority of the Government.

(b) The Minister in charge of the Army on behalf of the Government is the Minister of Defence.

3. (a) The supreme command level in the Army is the Chief of the General Staff.

(b) The Chief of the General Staff is subject to the authority of the Government and subordinate to the Minister of Defence.

Two brief textual notes: First, the IDF is a unified service, and therefore, the reference to the “Army” means the entire Israeli armed forces (including the Israeli Navy and Air Force). Second, the term “government” refers in Israel's political system to the collective body in which all ministers—heads of executive offices of the government—are members. That collective body stands at the peak of the executive branch. The prime minister is, of course, the most important member of this body, but formally does not have special voting rights.

Hence, according to Basic Law: The Military, the government in its entirety has authority over the military, including over the IDF and the IDF Chief of the General Staff (CGS). The role of the minister of defense and the exact division of power between the minister of defense and the government as a whole is less clear, however. The Israeli Supreme Court offered its interpretation to this article only on one occasion, in the 1979 Dawikat v. Minister of Defense judgment. In that judgment, that court made several comments but did not issue a definitive ruling on the correct interpretation of the Basic Law. According to the court, the CGS and the IDF should follow the decisions of the minister of defense, but have the right to “appeal” the decision of the minister of defense to the entire government. However, the court did not offer its views on the duty of the government to control the military absent such an “appeal.” It is thus unclear which kinds of decisions relating to the operation of the military should be taken by the government and which by the minister of defense.

A partial answer to the question can be found in Article 40 of Basic Law: The Government, which states the following:

40. (a) The state may only begin a war pursuant to a Government decision.

(b) Nothing in the provisions of this section will prevent the adoption of military actions necessary for the the defence of the state and public security.
According to Article 40(a), war may only begin with a decision of the entire government. Still, Article 40(b), which deals with other military operations, does not specify which entity has the power to authorize military operations that do not amount to a war. Furthermore, it is unclear whether a decision by the full government is also required with respect to military activities that might lead to war, as the head of the Mossad allegedly suggested in the disagreement over the authority to direct the bombing of Iranian nuclear facilities described above.

The last part of Article 40 deals with the role of the Knesset in military operations. Article 40(c) states that:

(c) Notification of a Government decision to begin a war under the provision of subsection (a) will be submitted to the Knesset Foreign Affairs and Security Committee as soon as possible; the Prime Minister also will give notice to the Knesset plenum as soon as possible; notification regarding military actions as stated in subsection (b) will be given to the Knesset Foreign Affairs and Security Committee as soon as possible.

The role of the Knesset, and especially that of the Foreign Affairs and Defense Committee is to receive notifcation. Neither of these bodies has any formal approval or oversight authority. Theoretically, Israel's parliamentary system offers the Knesset the possibility of passing a “no confidence” vote in the government if it disapproves its actions—an action that would cause the entire government to fall. Naturally, in times of national emergency, this is not a very realistic possibility.

Whatever the intended design of Israeli national security law might have been, in practice there are two more institutions that yield important powers in national security decision-making: the Ministerial National Security Committee and the prime minister.

The Ministerial National Security Committee (otherwise known as the “Political-Security Cabinet” or simply the “Cabinet”) is a body consisting of no more than half the members of the full government, usually the most important ones in terms of portfolio or political power. The Cabinet does have more expertise in national security matters than the entire government, and its deliberations are usually kept secret. There are reports and indications that many important decisions regarding the use of military power are actually taken by this body.

The prime minister, who heads the Cabinet as well as the government, has much flexibility regarding what issues are to be discussed at the Cabinet, and at what level of specificity. As Israeli state comptrollers found in several instances, many decisions in matters of national security or involving military operations were taken by the minister of defense and the prime minister, without consulting the Cabinet and at any rate without providing it with all the relevant information. Some members of the Cabinet were also quite vocal in the recent past about the fact that they did not receive access to all intelligence and other sources of information required to make an informed decision on matters that came before them.

A Reform Proposal

A new proposal to amend Basic Law: The Government, which the government recently tabled in the Knesset, seeks to address some of the problems discussed above. First, the proposed amendment states that a decision of the government would be needed not only to begin a war, but also for “operations that would lead to war in a level of probability of near certainty.” Second, the amendment authorizes the government to delegate its powers of beginning a war and operations that might lead to war, to the Cabinet, for reasons of “Secrecy, National Security or Foreign Relations.” Third, the amendment states that decisions in the cabinet should be taken only when at least half of the members of this body are present, but that the prime minister and minister of defense may decide that even a smaller number of members would suffice under urgent circumstances.

These amendments would indeed help clarify the legal picture and to harmonize the legal framework and political reality. The amendments are based on proposals made by Israel’s former national security adviser, Gen. Yakov Amidror, in a detailed report he submitted in December 2016. In addition to the proposed amendments detailed above, Amidror also proposed that members of the Cabinet would be given access to more intelligence, and that the Israeli National Security Council would brief cabinet ministers on a regular basis on major security issues. In the beginning of 2017, the government adopted these recommendations.

Nevertheless, while these amendments and proposals are steps in the right direction, they still leave much to be desired.

First, it seems a little out of touch with current practice that a decision of the government, or the cabinet, is required only for “beginning a war.” Most current armed conflicts are not “wars”—or at least do not start as such. Rather, they are operations and uses of force that fall short of full-fledged war. It follows that an amendment should require government or cabinet decisions regarding large-scale military operations or acts of armed conflict. Adopting such a change would mean that a body representing the government would exercise greater functional civilian control over military operations. Granted, such authority would require members of the cabinet to attain more knowledge regarding military capabilities, strategic options, and intelligence, which, in turn, would require the strengthening of Israel's National Security Council, an institution that has hitherto not fulfilled its potential as an institutional quality-control mechanism. But these reforms, too, would be long-overdue and positive developments.

Second, while the potential for delegation of power to decide on the beginning a war (or large-scale military operations) is justifiable, the suggestions included in the amendment seem to go too far in terms of the ability of the prime minister and the minister of defense to limit the number of participants in urgent cabinet discussions. Note that there is room for legitimate discussion over whether the government can delegate its war initiation power to the cabinet to begin with. On the one hand, a wider forum means more opinions and more legitimacy for the decision. On the other hand, a smaller forum works more efficiently and may attain relevant expertise. However, even if the option of allowing delegation to the cabinet is adopted, the delegation should not be to the prime minister and the minister of defense alone. Israel's political constitutional structure relies on the collective responsibility of the government as a whole. The ability of the prime minister and minister of defense to decide on large scale military operations without the approval of the full cabinet, or at least in a discussion in which a majority of this body participates, runs counter to this constitutional principle. Naturally, arrangements should be made for expedited decision-making during emergencies, where it is not feasible to have a discussion. However, using modern technologies, practical solutions more inclusive than this proposal are likely exist.

Finally, it is important to contemplate the role that the Knesset should play in military operations, especially if the authority to decide on large-scale military operations is delegated to the cabinet. It seems that parliamentary authority should be strengthened in terms of its oversight powers over military activity. At the very least, the role of the Foreign Affairs and Defense Committee of the Knesset should be defined in greater detail and its power to receive detailed information regarding military activities, and reports from the relevant civilian and military figures responsible for such operations, reaffirmed.

Israel, and a growing number of other democracies, are increasingly involved in ongoing long-term military operations. In these situations, it is important that the legal powers facilitating control over military operations would be flexible enough to allow the state to protect its interests while still observing democratic principles. The proposed amendment to Basic Law: The Government certainly aims to achieve the first goal, but it is debatable whether it achieves the second.

The article was published in Lawfare