In the aftermath of the recent IDF military mission in Gaza, Operation Breaking Dawn, there have been reports about disagreements among members of the security cabinet – a body consisting of approximately half the members of the entire government – regarding the need for approval from the cabinet to launch the operation.
According to these reports, Health Minister Nitzan Horowitz argued that it was not sufficient for Prime Minister Yair Lapid and Defense Minister Benny Gantz to launch the operation on their own and that the decision should have been brought to the Security Cabinet for its approval. Lapid, backed by Attorney-General Gali Baharav-Miara, reportedly replied that an operation of this nature does not require specific approval of the cabinet, and a decision by the prime minister and defense minister was sufficient.
Even without knowing exactly what was said during the confidential meetings of the security cabinet, the source of the disagreement is understandable. The legal procedure for decision-making prior to approving military operations of the IDF, and the authority vested in the different civilian bodies is confusing and flawed.
What are the sides?
Granted, there are several agreed-upon principles. There is no disagreement that the Israeli military is subordinate to the country’s elected officials. It is also clear that the highest political authority for security matters in general, and for issuing orders to the IDF in particular, is the full government as approved by the Knesset. In the words of Basic Law: The Army, “the IDF is subordinate to the Government.” However, regarding the exact circumstances under which the entire government must make decisions, and when it is sufficient for the Security Cabinet or even a more exclusive forum such as one that includes the prime minister and defense minister can make such security determinations is less clear-cut.
What is the ideal situation?
Under ideal circumstances, decisions taken by the elected political echelon regarding the management of military operations should reflect two, sometimes conflicting, considerations. Such decisions should be made in a broad forum and one which has sufficient professional knowledge in military matters. Professional knowledge is required so as to enable the political branch to hold focused and meaningful discussions, and to keep proper checks on the military.
A broad forum is preferable because according to Israel’s constitution, the elected government as a collective constitutes the ‘executive branch’ and as much as possible, decisions should be made by this body or a body that reflects its composition. In addition, when decisions are made by an individual or by a very small number of people, in-depth discussions with presentations of differing or critical positions cannot take place.
Deviations from both principles, professionalism and collective decision making, have been notorious. For example, during the First Lebanon War the main decisions were made by the government but some claim that the ministers did not fully comprehend the ramifications of their decisions. Some twenty years later during the Second Lebanon War, prime minister Ehud Olmert was criticized for his performance at the beginning of the war and decisions he made without consulting other members of the government, despite the fact that several of them had extensive knowledge of security matters.
A balance of the two considerations, professionalism and the need for a collective decision, resulted in the establishment of the Ministerial Committee on National Security Affairs (i.e., the security cabinet). Ideally, this group would include a group of ministers large enough to include the most relevant and important members of the government, and knowledgeable enough to conduct meaningful decisions in matters of national security. In order to assist this body in making its decision and provide the relevant knowledge to its members, Israel established the National Security Council. However, this ideal structure and actual reality are very different.
First, although Basic Law: The Government does indeed state that the government is empowered to delegate authority to the security cabinet, the cabinet only needs to approve a “war” or a “major military operation with a high probability of leading to war.” The law does not define what constitutes a war, and a Supreme Court ruling grants the government a great deal of leeway in defining a war. For example, the Court refused to positively rule that the Second Lebanon War should be defined as a war as opposed to a military operation.
Second, it is not at all clear who determines the law’s intention in defining the nature of an operation that could lead to war. Given the timetable in which the law was legislated and the news reports at that time, it is likely that the original intent referred to the potential bombing of Iranian or Syrian nuclear plants. Such operations could definitely lead to war, but what of lesser operations, such as the targeted killing of a senior operative of the Islamic Jihad, as was the case in the recent operation? Attorney-General Baharav-Miara’s position implies that determining whether a certain operation could lead to war should be left to the professional echelon and security officials. As a result, the pyramid has been turned upside down and security officials are now the ones who decide when the cabinet will oversee their activities.
An additional problem is the make-up of the cabinet. It convenes when a prime minister calls a meeting, and not at fixed times. The prime minister and the National Security Council determine what materials the cabinet members are given access to, and what qualifications they need to be members of the security cabinet. These vary according to the views of the prime minister and head of the National Security Council.
As a result, all prime ministers and defense ministers prefer to reduce the cabinet’s role, since they are not particularly keen to have their actions placed under scrutiny. The IDF shares this same sentiment because it has traditionally opposed a wider role for the National Security Council, the main means for the cabinet to supervise military operations. In practice, the weakness of the security cabinet and the National Security Council means that most decisions are made by the prime minister and defense minister, without meaningful and critical cabinet discussions in a larger forum.
So, what can be done?
In May 2019, Dr. Liron Libman and I published a detailed proposal for a decision-making mechanism for embarking on military operations. We made several simple proposals that could greatly improve the situation: To amend Basic Law, the Government should state that the cabinet’s authority is to decide on “wide-ranging hostile activities” and not only on a war, and on any operation when it is reasonable to assume that it would lead to wide-ranging hostile activities. To determine the likelihood of a military operation leading to war, the authority should be granted to the heads of the Intelligence agencies, in particular to the head of the National Security Council, and should not be left to the IDF alone.
The law should also determine the minimum quorum of cabinet members required at decision-making meetings, as well as the information that should be made available to them. The law should also state that one-third of cabinet members have the right to demand a meeting of the security cabinet.
In addition, in light of the ever-increasing size of the government, I believe it may be appropriate to determine a maximum number of ministers who should be granted membership in the cabinet, in order to maintain secrecy and focus during the discussions.
Operation Breaking Dawn turned out to be a brief and seemingly successful operation. However, the decision-making process for matters of national security must also be prepared for worst-case scenarios. To successfully deal with such cases, a reform of the current process is needed.
The writer is a senior fellow at the Israel Democracy Institute.