There is a vagueness about the authority to make fateful decisions for the country, including what even counts as war.
At the time of this writing, heavy barrages of rockets from Gaza are being fired into Israel, affecting a wide swathe of the country from the Tel Aviv region southwards. Dozens of civilians have been injured and buildings damaged. Around one million schoolchildren have stayed home today because schools were closed down. This rocket attack comes in response to an IDF operation last night, in which a senior Islamic Jihad commander in Gaza was killed. According to a statement from the Prime Minister’s Office, this operation was recommended by the IDF chief of staff and the head of the Israel Security Agency, and was authorized by the prime minister after it was presented to and approved by the security cabinet.
The fact that the operation was submitted for security cabinet approval should be applauded, but the question remains of whether there are clear boundaries of authority in such cases, and whether the process of making fateful decisions such as these is properly anchored in law. This is always a sensitive issue, but it is especially so under a transition government. Unfortunately, the answer to the above question is negative.
It may be difficult to believe, but until 1992, despite all of Israel’s wars, Israeli legislation contained no express instructions defining who was authorized to take the country to war. The accepted interpretation was that the government has the authority to make decisions regarding military actions, as one of its residual powers—that is, simply because the law had not assigned this power to any other state body. An amendment made to the Basic Law: The Government in that year made this explicit, ruling that the state could not go to war without a government decision. The meaning of the term “war” in this context is unclear, and of course, the concept of countries “declaring war” has become an anachronism. This issue was brought to the Supreme Court on just one occasion, following the Second Lebanon War, and in that case, the Court refused to rule that the government should have issued a formal declaration of war.
The situation was improved somewhat last year when the Basic Law was amended once again, such that a government decision is now also required in the case of a “significant military action that will almost certainly lead to war.” However, a lack of clarity still exists: If we assume that when the operation to kill the senior Islamic Jihad commander was being considered, the assessments were that the current extent of rocket fire was a possibility, should this have been considered “war”? If not, there was no need for the operation to have been submitted for government approval. Another difficulty resides in the formulation “almost certainly,” which means that even if it seems likely that a particular military action will lead to war, unless it will “almost certainly” do so, there is no need for it to be discussed by the government. And in any case, who decides whether war is “almost certain”? The prime minister? The head of the IDF Intelligence Corps? This question, too, has no answer.
No less troubling is the fact that, in cases not involving war or actions that will lead to war, it is not clear who is authorized to approve major military actions.
The main argument over last year’s amendment to the Basic Law was focused on a clause allowing the prime minister and the defense minister, in exceptional circumstances, to take decisions in an even more limited forum than the security cabinet itself. This clause was revoked after a short time, but was not replaced by a clear decision as to the minimum quorum allowing the security cabinet to make decisions. This would imply that it is sufficient for the chairperson of the cabinet—that is, the prime minister—to decide alone. The law also gives the prime minister the power to decide whether a specific decision should be brought to the security cabinet or the government, leaving room for manipulation, depending on what might be politically expedient at any given time.
While it may be justifiable for decisions on military actions to be made by the security cabinet rather than by the entire government, in this case, the security cabinet plenum should comprise a broad forum of government ministers. In order to ensure that decisions taken are informed and that alternatives are properly considered, there should also be rules on the provision of information to cabinet members and on hearing the opinion of the national security advisor, unless very special emergency circumstances make this impossible.
In May 2019, my colleague Prof. Amichai Cohen and I produced a detailed proposal (under the auspices of the Israel Democracy Institute) for the required amendments to the law, based on both the Israeli experience and on a comparative review. It is to be hoped that when a new government is finally formed and the Knesset returns to its regular activities, efforts will be made to anchor this critical issue in legislation, as it very well should be.
The article was published in the Times of Israel.