Netanyahu retains war powers while Eisenkot forms new government
Legal experts note that caretaker cabinets are not barred from military action, though Supreme Court rulings require restraint when decisions can be delayed.
By Ibrahim Howard ·
Prime Minister Benjamin Netanyahu retains full executive authority over Israel’s defense establishment despite the presidential decision to task Gadi Eisenkot with forming the next government. President Isaac Herzog made this appointment following the recent elections, but Netanyahu remains in charge of a caretaker cabinet. This arrangement leaves him with the power to direct Israeli policy toward Iran and oversee the military, a situation that has created uncertainty regarding who holds the final say on potential new offensives.
The legal framework governing this power is found in Section 40 of Basic Law: The Government. The statute states that Israel cannot initiate a war or undertake significant military action likely to lead to war without a government decision. The law permits the prime minister to delegate this authority to the security cabinet for reasons of national security or secrecy. Basic Law does not distinguish between a regular government and a caretaker one. Section 30 further stipulates that an outgoing government continues to perform its duties until a successor is sworn in, meaning Netanyahu’s ministers retain their executive roles.
Supreme Court rulings have established that an outgoing government must exercise restraint and act reasonably, taking into account the change in its democratic legitimacy. However, the obligation to act with restraint becomes less restrictive when facing an immediate security threat. The legal difficulty arises when the government considers initiating a military operation that could be postponed without compromising operational objectives. In such cases, the prime minister cannot independently authorize every decision to launch a war; it requires either a government decision or a decision by the security cabinet acting under lawfully delegated authority.
Historical precedents support the view that caretaker governments can use military force. In December 2008, caretaker prime minister Ehud Olmert oversaw Operation Cast Lead in Gaza. In May 2021, Netanyahu, serving as caretaker, launched Operation Guardian of the Walls after Hamas rocket attacks. In August 2022, caretaker prime minister Yair Lapid and defense minister Benny Gantz led Operation Breaking Dawn against Palestinian Islamic Jihad. While these operations were major, they differed in scope from a potential war aimed at overthrowing the Iranian regime.
Tensions have emerged between Jerusalem and Washington over the next steps against Iran. President Donald Trump said in a CBS interview that he sees no need to resume strikes at this stage. His administration is pursuing an agreement with Tehran, with Secretary of State Marco Rubio arguing that economic pressure and a naval blockade have been effective. Vice President JD Vance has been personally involved in indirect contacts with Iran over the past two weeks. By contrast, Netanyahu maintains that overthrowing the regime in Tehran is the only way to permanently eliminate the threat.
The security cabinet is expected to convene on November 15 for the first time in more than a month. Its last meeting took place on October 5, before the Knesset elections. During this period, the defense establishment has been instructed to increase readiness for a possible strike on Iran. On Wednesday night, Eisenkot sent Netanyahu a letter demanding restraint in security decisions during the caretaker period. Eisenkot cited the recommendation of 67 Knesset members for his coalition compared to 46 for Netanyahu, arguing against deploying forces in the absence of a direct and immediate threat that cannot be postponed.
