Israel's caretaker government can go to war with Iran despite legal constraints

As the Central Elections Committee continued counting votes Wednesday morning and the actual vote count was updated, it appeared that neither political bloc had a clear majority needed to form a government. However, until Israel's political direction becomes clear, the outgoing government will continue to lead the country as a caretaker government, against the backdrop of a possible renewed military campaign against Iran and other challenges.

Underlying the legal question of a caretaker government's powers are concerns about political motives in a scenario in which war could be used to influence the composition of the next government or even bring about the formation of an emergency government. Under the law, restraint and moderation remain the principles governing the government's conduct until a new government is formed following the official election results. According to the attorney general's guidelines, the scope of authority and manner in which an outgoing government exercises its powers differ from those of a regular government.

A caretaker government is required to exercise restraint in matters that do not involve a particular need or urgency for action during this period. The principle, which has also been upheld in Supreme Court rulings, reflects concerns about creating faits accomplis that could leave the incoming government facing an irreversible situation. "When decisions are being considered on matters that fall outside routine administration, ministers must consult in advance with the legal adviser of the relevant ministry before making a decision," the guidelines state.

The precedents and the absence of a legal barrier to war From a legal standpoint, a caretaker government is not prohibited from going to war. Section 40 of Basic Law: The Government makes no distinction between a regular government and a caretaker government. It requires a decision by the government or, under delegated authority, the Security Cabinet to launch a war or undertake significant military action likely to lead to war. The prime minister cannot make such a decision alone.

The precedents set by Operations Guardian of the Walls and Breaking Dawn demonstrate that caretaker governments have launched military operations. However, both were limited in scope and based on specific intelligence warnings, rather than broad wars initiated by Israel. Accordingly, judicial oversight is also expected to be limited in the current circumstances. It is reasonable to assume that Netanyahu's government or the Security Cabinet would unanimously approve a decision to go to war.

IDF Chief of Staff Lt. Gen. Eyal Zamir, who reportedly blocked Netanyahu's attempts to advance strikes against Iran before the elections, did not oppose the operation itself, but rather its timing before the vote. Against this backdrop, Gadi Eisenkot, chairman of the Yashar! party, addressed the heads of the defense establishment and public service Tuesday night in a speech after the polls closed, declaring that Netanyahu was "a caretaker prime minister, without a mandate or confidence."

He concluded with a warning: "Netanyahu, don't you dare use Israel's security for your political needs." His remarks came after Netanyahu said that, regarding Iran, "it is not over yet," and following a Wall Street Journal report Tuesday night that the United States had instructed Gulf states to prepare for a "short and intense" military campaign after the Nov. 3 midterm elections. A war against Iran would have implications for negotiations to form the next government, as the sensitive period extends from Election Day until the Knesset is sworn in, around Nov. 10, and subsequently until the president completes consultations on whom to task with forming a government.

Eisenkot said he would work to establish a "Zionist government committed to universal conscription" and described another election as a mistake. However, according to the updated vote count, the outcome remains far from decisive, with neither bloc holding a clear majority to form a government. Netanyahu, meanwhile, has emphasized that Likud remains the largest party. A war during this period could change the political landscape and push the parties toward forming a unity or emergency government, as happened on the eve of the Six-Day War in 1967 and again in October 2023, following the outbreak of the Swords of Iron war.

Netanyahu's critics fear that this could be one of the possible objectives of such a military campaign. However, there is no public evidence of such an intention, and these assessments reflect the views of political commentators and Netanyahu's opponents. At the same time, renewed fighting could make it easier for U.S. President Donald Trump to push for a unity government in Israel, as sources close to him have said that forming a government with Otzma Yehudit Chairman Itamar Ben-Gvir is "not an option."

Scope of authority and exercise of government powers Speaking at a legal conference in the past, Attorney General Gali Baharav-Miara said that "the scope of reasonableness in this context is examined in light of the characteristics of the specific authority being exercised, while taking into account the necessary balance between the need for government action and the requirement for restraint." "It is neither possible nor appropriate to freeze government activity," she said.

"The state must be allowed to continue functioning. Therefore, the more essential a government action is, the less restraint is required, and vice versa. Everything depends on the circumstances. "This also applies, among other things, to appointments to public office. In accordance with Supreme Court rulings, the starting point is that appointments to public positions should generally be avoided during an election period." She continued: "Nevertheless, this is a starting point that must be assessed in light of all the circumstances.

As clarified in the attorney general's guidelines on the matter, there is no absolute prohibition on making appointments, even senior appointments, during an election period. The question is one of facts and balancing the various relevant considerations." Decisions concerning legal advice to the executive branch, including decisions on appointments during election periods, are made according to established professional standards published in the attorney general's guidelines.

These standards were not formulated for any particular election. "The decision on whether a particular action can be carried out during an election period, including whether a specific appointment can be made, is examined through an orderly process that weighs the necessity of the government action against the principles underlying election law," Baharav-Miara added. Under previous guidelines, ministers are to be informed that "from this point onward, the incumbent government has become an outgoing government.

Although this outgoing government continues to serve until the new government is formed, its scope of authority and manner of exercising its powers, as well as those of its leader and members, differ from those of a regular government." The guidelines note that Supreme Court rulings have expressed concern that a caretaker government might prioritize "narrow partisan interests over the public interest, as well as create faits accomplis that could leave an elected government facing an irreversible situation."

Because it is difficult to define precisely which restrictions apply to a caretaker government, the Supreme Court has noted that "these are questions involving a delicate balance between the duty to act and the restraint and moderation required." The court also clarified that when "decisions concerning matters outside routine administration are under consideration, ministers and authorized officials in the ministry must consult in advance with the ministry's legal adviser before making a decision."

A previous letter to government legal advisers stated that "the outgoing government must refrain, when unnecessary, from making irreversible decisions that would make it difficult for the new government, which will serve by virtue of the Knesset's confidence, to implement its policies in accordance with the will of the voters." The guidelines also warn against the abuse of governmental power and state resources to gain an unfair advantage.

Ministers remain subject to restrictions on using public resources to benefit political officials.