Who Can Declare War on Behalf of the Israeli People?
Following the approval of the “Cabinet Law,” allowing the government to delegate its authority to declare war to the National Security Cabinet, IDI Senior Professor Prof. Amichai Cohen, and expert on national security law, contends that the bill addresses a critical issue but has been passed too hastily.
Prof. Cohen explains: "For years it has been clear that on a practical level--decisions regarding military actions cannot be made by the entire government in its extended plenum. And so, it makes sense to entrust this power to the Cabinet. That said, such a far-reaching change must be carefully planned and implemented."
Cohen explains that "in the new law, the Cabinet’s role is not adequately defined. Anchoring the Cabinet's authority to declare war in a Basic Law without defining basic rules and procedures for exercising this authority –for example—defining the role of the National Security Adviser in making such a decision, and granting cabinet members access to essential intelligence material – is simply wrong".
The Law requires the attendance of at least half the members of the cabinet when a decision to go to war is made. However, in extreme circumstances it empowers the Prime Minister and Minister of Defense to decide, even when fewer members are present. According to Cohen: "This is troubling, since in theory, the Prime Minister and the Minister of Defense could decide to go to war without the involvement of any other cabinet member."
Moreover, the law only relates to “war,” i.e. a full-blown conflict between two countries. Yet almost all of Israel's recent armed conflicts do not fit this definition, making the law irrelevant to many of the threats currently facing Israel, and also failing to address the process through which the Cabinet reaches decisions when limited conflicts do turn into wars.
Cohen adds that by approving the bill, the Knesset has placed fateful decision-making powers in the hands of a Cabinet that lacks long-standing traditions in this area, whose authority is vaguely defined, and whose resources are not adequate. What is more it passed such a momentous decision on the basis of a few short discussions in the Foreign Affairs and Defense Committee. Perhaps the framers had a specific operational need in mind. But laws are meant to regulate not only the "here and now"; they must take into account decision-making processes for future years and generations. Therefore, these processes need to be developed on the basis of clear underlying principles, rather than be dependent on the whims of one prime minister or another. The current law as passed, does not meet this standard.
The Law must:
- Require at least half the members of Cabinet to be present when a decision to go to war is made, including those in key positions – the Prime Minister, the Acting Prime Minister, the Minister of Defense, the Minister of Justice, the Minister of Foreign Affairs, the Minister of Internal Security and the Minister of Finance, without enabling the prime Minister to deviate from this requirement.
- Stipulate that the National Security Adviser be allowed to express his opinion on the full range of consequences of the action in question.
- Replace the term "war" – a term which Israel has never used when initiating military activities – with the term "significant military action," which would be defined as an act likely to cause widespread hostilities.
- Determine in an explicit and detailed manner the types of military actions (that do not qualify as "significant military actions") that require the Cabinet’s approval and those that do not.
- Adapt the "Basic Law: The Military" in order to prevent misunderstandings, which, in extreme cases, could even lead to controversies on the operational level between the military and political leadership.
For the full opinion written by Prof. Amichai Cohen and Col. (res.) Liron Libman, of the Amnon Lipkin-Shahak National Security and Democracy Program at the Israel Democracy Institute, click here.