Israel to Nix Law Allowing Prime Minister to Declare War With Only the Defense Minister's Consent

Security cabinet acting to reverse law back to its old draft, but critics warn that it, too, has loopholes that could enable a premier to declare war without any backing

Left to right: Israeli military chief Gadi Eisenkot, Prime Minister Benjamin Netanyahu and Defense Minister Avigdor Lieberman at a meeting in army headquarters in February 2018.
Ariel Hermoni/ Defense Ministry

The security cabinet decided Wednesday night to act to cancel a law that gives a sitting prime minister and defense minister the authority to declare war without further backing from any other ministers or legislators.

The aforementioned law, approved by the Knesset in April, differs from its original draft, which suggested that the authority to announce the country is going to war should be transferred from the cabinet to the inner cabinet.

To really understand Israel and the Middle East - subscribe to Haaretz

But following public outcry, Justice Minister Ayelet Shaked has been authorized to act to obtain a majority in the Knesset within 30 days that would approve the original draft of the law. This move was initiated by Prime Minister Benjamin Netanyahu along with Shaked.

The original law, which is now going to be promoted anew, stated that the cabinet should be allowed to decide whether Israel ought to go to war or take any significant military action. It did not forbid the cabinet from making such a decision even if some of its members are absent when the decision is made.

Members of the Knesset's Foreign Affairs and Defense Committee heavily criticized the draft of the original law as well. MK Ofer Shelah (Yesh Atid) and MK Omer Bar-Lev (Zionist Union) both claimed at the time that the original draft of the law had a loophole that could potentially enable the prime minister to decide to go to war on his own or only with the consent of ministers who support him.

"We thought about a situation when the prime minister announces that in four minutes he's calling a cabinet meeting- so that none of the ministers can make it in time- and that way he can make the decision [to go to war] on his own," a member of the Foreign Affairs and Defense Committee told Haaretz.  

>> What's behind Netanyahu's move to grant himself power to declare war? | Analysis 

The Foreign Affairs and Defense Committee had failed in the past to try and demand that the law state that at least half of the cabinet members must be present as a precondition to Israel's launching a war or setting out on extensive military action.

"This is an imagined and extreme scenario where the prime minister takes upon himself the right to make such a dramatic call alone. There's a limit to the amount of ludicrous scenarios you can toss around," a minister said of the possibility that an Israeli premier would independently rush to launch an offensive. "Even today, according to law, the government is authorized to decide to go to war without determining a minimal number of ministers that ought to be included in such a discussion; no prime minister has thus far taken advantage of the law in order to make decisions on his own."

The law was originally meant to tackle a legal deficiency: to this day, legislation acknowledges the government as the sole authority allowed to declare an initiated war.

However, since 1982, such decisions have not been made by the government but rather by the cabinet or even smaller forums. A committee headed by Maj. Gen. (res.) Yaakov Amidror ruled that it was right to leave the authority to make such a decision to the cabinet, but that it ought to be determined through legislation.

Members of Amidror's committee did not recommend the establishment of any mechanism that could bypass the cabinet in emergencies. "It didn't appear in our recommendations," Amidror told Army Radio several weeks ago. "I don't know how this [clause] made it in. I think it should have stayed at the cabinet level."

MK Ofer Shelah responded to the cabinet move on Wednesday, saying that "This win proves that when you fight for the right thing, you can win."

MK Omer Bar-Lev said that "the attempt to interfere with a proper decision-making process regarding the call to go to war was a horror show that happened right before our eyes. It's good that the cabinet decided to walk back on this."