As the sun was just about to rise on Tuesday morning, the IDF killed Palestinian Islamic Jihad terror leader Bahaa Abu al-Ata in what it described as a “surgical airstrike.” Later in the day, Prime Minister Benjamin Netanyahu explained to the Israeli public that the decision to take down the head of the Al-Quds Brigades in Gaza was made by the Security Cabinet, which met about the operation several times.
“It seems reasonable,” said Col. (res.) Liron A. Libman, a researcher in the Amnon Lipkin-Shahak Program on National Security and Democracy at the Israel Democracy Institute and the former Chief Military Prosecutor and Head of the International Law Department in the Israel Defense Forces.
But he told The Jerusalem Post that it is not clear in Israel who is authorized to decide on military action in the Jewish state.
Until 1992, there was no specific article - either in a Basic Law or in a regular law - as to who was authorized to order a military operation. As such, the decision fell ambiguously to the government.
Then, that year, the country passed Basic Law: The Government. Within that law, there was an article that said the country could not go to war without a government decision.
“It was old-fashioned when it was enacted,” said Libman. Yet, that article remained intact until 2018.
Then, it was amended to specifically authorize the government to allow the Security Cabinet to decide on going to war. It also widened the necessity of a government decision from war to war or any other significant action that would almost definitely cause war.
But, said Libman, even the amended law leaves many questions, such as what constitutes a high probability that military action will bring war? Or, what is the definition of war?
“Let’s say the security-intelligence assessment is that if you kill this person, there will be a lot of rockets shot, like we see now. Is it war or just extensive hostilities?” Libman asked. “Who is the competent authority to decide on the probability of war or its definition - the chief of staff, the minister of defense, the head of Intelligence, the Security Cabinet?”
Libman said that once the current escalation is quelled and a government is put into place, these questions must be answered.
The Israel Democracy Institute wrote a paper suggesting a detailed bill on how to amend this arrangement, such as instead of talking about war it would just mention extensive hostilities. Another change would be obliging the government to decide on who can approve actions that would not amount to war. Furthermore, it would require that the Security Cabinet to approve military operations not only when it is almost certain there will be war, but when there is a high probability of war.
“It seems like a proper procedure may have been followed this time, but there is no guarantee the next time,” he concluded.