The War on Hamas: The Decision to Go to War, in Theory and Practice in Israel
Is the operation in Gaza a war, who is authorized declare war and what is the role of the cabinet and the government after war is declared?
Photo by Ayal Margolin/Flash90
According to section 40(a) of the Basic Law: The Government (2001), it is the government that should decide when Israel goes to war, or launches “a significant military action that might, at a level of probability that is close to certainty, lead to war.”
Section 40(a)(1) of the same Basic Law determines that the authority to decide on going to war can be delegated to the Ministerial Committee for National Security Affairs (known as the “security and foreign affairs cabinet”), either for specific cases or on a permanent basis. In 2018 the government authorized the cabinet to make the decision of going to war on a permanent basis. The implementation of such authorization in specific cases is subject to a ruling by the prime minister that this is necessary for reasons of security, foreign relations, or confidentiality.
When making decisions about going to war—one of the most important decisions made by a state—a tension arises between two contradictory objectives: On the one hand, is the desire for efficient and confidential decision-making, which implies a decision-making process that does not require a large forum. On the other hand, is the desire for democratic legitimacy, requiring the expression of a range of public views on the subject, implying a decision-making process that allows for an informed discussion in which different views are presented.
Thus, the law states that going to war (or launching a significant military action that could lead to war) requires a decision by the government, or at the very least-by the cabinet, in cases when this is truly necessary. It cannot be decided on by the army, or even by the prime minister and defense minister alone.
According to the Government Law, the government must establish a Ministerial Committee for National Security Affairs, which the law dictates must include the prime minister (as committee chair), the defense minister, the minister of justice, the national security minister, and the finance minister. The government may add other members to the committee, as long as the total number of members does not exceed half the number of members of the government. In the current government (Israel’s 37th), the committee includes, in addition to the members required by law, the following ministers: Avi Dichter (Minister of Agriculture and Rural Development, Ron Dermer (Minister of Strategic Affairs), Yisrael Katz (Minister of Energy), and Miri Regev (Minister of Transportation).
The Basic Law: The Government, does not define the term “war,” nor is there any such definition in other laws in Israel.
By international law, “war” is defined as an armed conflict between two or more states.[1] In practice, the majority of armed conflicts in which the State of Israel is involved are with terrorist organizations, rather than states. These conflicts can inflict heavy casualties on Israel (as well as on the other side), both civilian and military, and can have wide-ranging consequences for Israel, in terms of foreign affairs, geopolitics, the economy, and more.
The explanatory notes to the amendment made to section 40(a) in 2018, which required government approval also in cases of military actions that may lead to war, referred to “consequences such as significant damage to public security, including on the home front, extensive call-up of reservists, damage to the state’s international relations, damage to the state economy or to other aspects” as characterizing “war.” Thus, it would appear that the law intended to include various major military operations against terrorist organizations such as Hamas or Hezbollah under the definition of “war.”
In the past, decisions to launch major military operations in the Palestinian arena were submitted to the cabinet for approval. Exceptions to this rule have included Operation Breaking Dawn (August 2022, under the Bennett-Lapid government), and more recently, Operation Shield and Arrow (May 2023, under the present government). In these cases, decisions were made only by the Prime Minister and the Minister of Defense. The Attorney General supported the Prime Minister’s position, according to which these operations did not require cabinet approval under the terms of the law. In the Attorney General’s legal opinion, the decision as to whether cabinet approval is needed, should be made on a case-by-case basis, consistent with assessments provided by defense professionals. In these specific cases, she was persuaded that it was far from certain that launching these two operations would lead to war, based on the professional opinions from defense officials that were presented to her.
These decisions attracted considerable criticism,[2] mainly because they set a relatively high bar for what is considered “war,” and thus allowed too much latitude for the prime minister to decide when to consult a larger forum (the cabinet or the government).
In accordance with section 40(c) of the Basic Law: The Government, the government’s decision to go to war must be conveyed as soon as possible to the Knesset Foreign Affairs and Defense Committee (and if the decision was made by the cabinet, then notification should be made as soon as possible to the government and to the subcommittee of the Knesset Foreign Affairs and Defense Committee). The prime minister is also required to deliver an announcement to the Knesset plenum as soon as possible.[3]
The Basic Law: The Government, does not explicitly define concrete powers that the government or the cabinet have after deciding to go to war.
The cabinet is convened at the prime minister’s discretion rather than on a regular basis. Usually, the government includes a clause in its working regulations stating that the cabinet will convene every two weeks, unless decided otherwise by the prime minister. The materials provided to members of the cabinet, and the expertise they are required to acquire, are largely determined by the prime minister and the National Security Council and vary according to the views of those holding these positions.
This situation has resulted in pressure from prime ministers and defense ministers over the years (who in any case are never happy about oversight of their activities) to limit the cabinet’s role .[4] The weakness of the cabinet and the National Security Council has, in effect, left decision-making largely in the hands of the prime minister and the defense minister, without the depth and critical analysis that significant discussions in the cabinet are meant to provide.
The government or the cabinet should also be involved in making key decisions during armed conflicts (such as launching major ground maneuvers, conquering enemy territory, or altering the strategic goals of an operation), for the following reasons:
- Section 2(a) of The Basic Law: The Military, states that “the military is subject to the authority of the government.” Directing a large-scale military operation without the involvement of the government (or the cabinet, on its behalf) would strip the government’s authority of any real meaning.
- In December 2017, the Amidror Commission presented its recommendations in a report to the government on the work of the Security and Foreign Affairs cabinet.[5] Among other things, the report also refers to the cabinet’s role during wartime, and as far as we know, this section of the report was adopted by the cabinet in 2017.[6] The report’s recommendations on this issue seek to strike a balance between the need to ensure oversight and direction from the political leadership over military operations, particularly on the strategic level, and the need to facilitate a rapid and efficient decision-making process on the operational-tactical level. The report recommends that during armed conflicts, the role of the cabinet should be as follows:[7]
- Defining the strategic goals of military operations, after assessing several relevant alternatives.
- Providing policy guidelines to military leaders defining the targets to be achieved by the end of the military campaign, and emphasizing the boundaries to be respected in the course of the campaign.
- Conducting thorough assessments aimed at ensuring that the operational plan will lead to achieving the foreign policy goals, while balancing existing risks s against various alternatives and emphasizing the significance and possible consequences of those alternatives.
- Identifying additional, complementary efforts (alongside the military effort) that the political leadership or other operational players should pursue in order to increase the operation’s chances of success, or to help achieve its strategic goals.
Similarly, the Commission recommended that “any substantive changes in a military plan, transitions from one phase of a plan to another, or significant changes resulting from developments on the ground, must be communicated to the cabinet, with the implications of these changes being made clear.”
The recommendations of the Amidror Commission have relatively weak legal standing, as the cabinet or the government are entitled to change the decision to adopt them. However, it would appear that the Commission’s recommendations reflect not only a sound operational approach to directing military campaigns, but also a principled approach reflecting the commitment of a democratic state to broad public legitimacy for military action. Government members have a collective responsibility to discharge their duties and it is only proper that the government—or at the very least, the cabinet—fulfills that responsibility.
The report published by the State Comptroller following Operation Protective Edge, noted that the prime minister is responsible for ensuring that the necessary information is provided in a full and organized way to cabinet decision-makers, to enable them to arrive at optimal decisions on security issues. Similarly, the IDF Chief of Staff bears responsibility for presenting the political leadership with information which enables it to deal with the security challenges facing the State of Israel in the best possible way. At the same time, it should be noted that the responsibility for effective involvement of the cabinet also falls on the cabinet members themselves.
The government commission to review the events of the Second Lebanon War, headed by Justice Winograd, stated that cabinet ministers should ensure that the prime minister fulfills his obligation to hold meaningful discussions on the State of Israel’s national security issues with them, and that they must demand that he do so if no such discussion is held. More importantly, cabinet ministers should refrain from approving far-reaching steps without having been presented with a plan of action that enables them to make an informed decision.
As noted above, the provisions of section 40 of the Basic Law: The Government, as well as the role of the cabinet during armed conflict, are subjects on which there is considerable room for interpretation. In the not-too-distant past, it was customary for attorneys general to provide their professional opinion on these matters, and for the prime minister to act accordingly. This is an issue that goes to the heart of Israeli democracy, relating to the delicate triangular relationship between the prime minister, government ministers, and the security forces. It is essential for the attorney general to be involved in any interpretation of the law, so as to maintain the proper balance between the three, including by avoiding the possibility that the decision to embark on a military operation is taken for inappropriate reasons. This scenario, or even any semblance of it, is especially relevant during a period of political instability.
It is to be hoped that the hostile stance of the current government toward the Attorney General (against the backdrop of the government’s efforts to revoke judicial review powers based on the unreasonableness doctrine via the amendment to the Basic Law: The Judiciary, an amendment that may also have consequences for the status of the attorney general) will not affect the willingness of the prime minister and government ministers to abide by the attorney general’s counsel on the implementation of section 40 of the Basic Law: The Government.
On Sunday October 8, 2023, the cabinet “approved the state of war,” effective from the beginning of Hamas’s offensive on October 7, 2023.[8] The Prime Minister also rightfully made it clear, that for security reasons he submitted the decision for the approval of the cabinet, rather than to the entire government.
As noted above, the main decisions relating to the management of the Operation should be taken by the cabinet. This would include decisions on a ground incursion into Gaza or any significant military actions during such an incursion, and obviously -- on the decision to end the operation as well.
[1] HCJ 6204/06, Beilin v. Prime Minister of Israel (August 1, 2006).
[2] On Operation Breaking Dawn, see Amichai Cohen (2022), “Who decides when to go to war, and what is war anyway?” Ynet, August 9. On Operation Shield and Arrow, see Eran Shamir-Borer (2023), “Two people decided to launch the operation. The cabinet was irrelevant again,” Ynet, May 15.
[3] Basic Law: The Government, section 40.
[4] Eran Shamir-Borer and Mirit Sharabi (2023), “Fifty years after the Yom Kippur War, it’s time the security cabinet replaced the prime minster’s ‘kitchen cabinet,’” Israel Democracy Institute website, September 24, https://en.idi.org.il/articles/50962.
[5] Recommendations of the Commission on the Work of the Security and Foreign Affairs Cabinet (Amidror Commission Report), December 2016.
[6] Itamar Eichner (2017), “The cabinet adopts the Amidror Commission recommendations: A body will be set up to keep cabinet ministers informed,” Ynet, May 28, https://www.ynet.co.il/articles/0,7340,L-4968549,00.html.
[7] Amidror Commission Report, p. 15.
[8] Itamar Eichner (2023), “Official confirmation from the security and foreign affairs cabinet: Israel is at war,” Ynet, October 8.