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Eran Shamir-Borer
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A war by any other name still needs the approval of the security cabinet

The law on national security decision-making needs to be amended to ensure that Israeli leaders cannot independently undertake 'military operations'
IDF Home Front Command soldiers in the southern port city of Ashdod on May 12, 2023, amid fighting between Israel and Gaza-based Palestinian Islamic Jihad terror group. (Jack Guez/AFP)
IDF Home Front Command soldiers in the southern port city of Ashdod on May 12, 2023, amid fighting between Israel and Gaza-based Palestinian Islamic Jihad terror group. (Jack Guez/AFP)

The latest military action in the Gaza Strip, Operation Shield and Arrow, was authorized only by the prime minister and the defense minister, without the prior approval of the Ministerial Committee on National Security Matters (the security cabinet). The same decision-making process was employed by former prime minister Yair Lapid in authorizing the previous operation in Gaza, Breaking Dawn, in August 2022.

Israeli law stipulates that “the state shall not go to war, and shall not initiate a significant military operation, when such an operation is very likely to lead to war, except on the basis of a government decision” (an authority that the government delegated to the security cabinet). With respect to both of the operations, the attorney general, in applying the law, relied on the assessments by relevant security experts to conclude that prior authorization by the security cabinet was not mandatory. With the current security situation unfortunately sure to lead to future military actions, Israeli decision-makers must ask themselves not only if this course of action fulfills the letter and spirit of the law, but also if such a decision-making process is really the way matters of war and peace should be decided in a democracy.

The attorney general has apparently set a relatively high bar for what constitutes “war” under the law. We may assume that right before the start of Operation Shield and Arrow, the high command estimated that several hundred rockets, at the very least, would be fired at Israel, that thousands of Israeli citizens would have to spend time in shelters (or evacuate their homes), and that Israel would launch hundreds of attacks against targets in the Gaza Strip. How does this differ from “war”? Is this not precisely the sort of war that is typical of the present era of armed conflicts with heavily armed terrorist organizations?

Even if one were convinced that the limited action planned in Gaza did not constitute a war, Israeli decision-makers are surely aware that history has demonstrated that there is a very short path from an “operation” with a limited death toll, to an all-out “war” that includes a ground campaign as well as many civilian and military deaths. In fact, the decision whether it is “merely” an operation rather than a “war” whose veterans are entitled to a campaign medal (as was decided for Operation Protective Edge in the summer of 2014) may only be determined after the hostilities are over. An errant Israeli missile that strikes a Palestinian family by mistake or a terrorist rocket that causes many deaths in Israel can change the ultimate fate of the operation. Could we really know in advance that the targeted killing of senior commanders of the Palestinian Islamic Jihad would not lead to a major military campaign that is indistinguishable from a “war”?

It is important to remember that in Israel, executive authority lies with the government (the full cabinet where all ministers are members). In an attempt to streamline decision-making in matters of war, that often must be made quickly and confidentially, the more limited security cabinet has been granted this authority. Further delegation of these military powers to only the prime minister and defense minister deviates even more from the law’s intent and could be very dangerous.

First of all, it invites pressure on the security experts to provide the attorney general with an assessment that there is no near-certainty that the operation will lead to out “war.” Second, it is liable to stir fears that political rather than security considerations stood behind the decision to launch a military operation. According to media reports, Prime Minister Netanyahu pulled back at the last moment from a decision to launch a military operation against Gaza right before the elections in September 2019, due to an opinion issued by the then-attorney general, Avichai Mandelblit, that the decision had to be approved by the security cabinet.

It is clear from these recent events that the current law governing the process of decision-making on national security is flawed and must be addressed. This is why experts at the Israel Democracy Institute have proposed ways to amend and clarify the law. But even until the law is amended, Israeli leaders should do their utmost to comply with a strict reading of the law to ensure that the decision to launch a military operation, with all its dramatic implications, enjoys democratic legitimacy by virtue of having been made in a large forum that conducts professional discussions relating to various aspects (foreign relations, economic impact, moral considerations) and that effectively oversees the relevant security agencies and assumes collective responsibility. 

We may assume that fears of leaks and the need to maintain the element of surprise lay behind the prime minister’s choice not to bring the decision to launch Operation Shield and Arrow to the security cabinet’s approval. Perhaps the prime minister’s skepticism about the added value of a debate in this forum was a factor as well. In either case, the security cabinet’s weakness, and the attempt by the prime minister to circumvent it, is not new and has existed in past governments as well.

At a conference at the Israel Democracy Institute last year, Dr. Eyal Hulata, the former director of the Nation Security Council, said that the cabinet’s weakness meant that a dynamic had emerged in which “prime ministers prefer other forums for consultation and deliberation.” The appropriate response to this weakness, however, is not to normalize the dangerous route of bypassing the security cabinet, but instead to urgently strengthen it and instill norms of good governance and a healthy respect for democratic decision-making when it comes to the most consequential decisions Israel’s leaders have to make.

About the Author
Dr. Eran Shamir-Borer is the director of the Center for Security and Democracy at the Israel Democracy Institute.
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