Netanyahu is endangering the hostage deal in working alone - opinion

Last week, reports in the media indicated that the members of the negotiation team in talks to secure a deal to bring back bringing back the hostages have been urging Israeli Prime Minister Benjamin Netanyahu to be more flexible in his demands to enable the talks to progress.

The prime minister responded, according to these reports, that “this is a policy decision, not a security decision,” adding that “I will decide on this issue,” conveying that only he will make the final decision. Such an attitude seems to disregard the fact that deciding against a deal to release the hostages is also a decision with serious security ramifications.

As Defense Minister Yoav Gallant reportedly made clear, we are now at a juncture, choosing between a deal and escalation of the security situation. As was reported, Gallant has asked to bring this issue for discussion by the security cabinet, given that Israel is at risk of being dragged into a regional war if the deal falls through.

In addition to the significant moral element involved, discussions regarding the negotiations for the return of the hostages and the conditions being proposed by Israel during the negotiations are closely connected to strategic issues related to the war itself and, thus, should be held in a broader forum such as the security cabinet (known formally as the Ministerial Committee on National Security), which is the “long arm” of the government on national security matters.

The prime minister’s failure to convene the security cabinet to discuss defense issues of immense importance, including specific changes to the conditions for a hostage deal, creates a situation in which power is over-concentrated in the hands of the prime minister in defense related matters, contrary to the parliamentary and cabinet-based regime in Israel.

Indeed, the current prime minister’s practices for decision-making on crucial defense and foreign-affairs issues do not reflect the lessons learned from Israel’s previous wars.

For example, the Agranat Commission, established to investigate the circumstances surrounding the outbreak of the Yom Kippur War, asserted that fundamental questions, long-term questions, and questions of special importance should be put forward for discussion and decision-making by the government (i.e., the prime minister and all ministers in his cabinet), even in wartime.

According to the Commission’s report, the prime minister is entitled to consult with appropriate officials at any time as he or she sees fit, as long as this does not detract from the authority of the government to discuss and make decisions on defense matters.

Similarly, the governmental commission of inquiry into the events of the Second Lebanon War, headed by Justice Winograd, made clear in its interim report (the main points of which were subsequently adopted by the government) that Israel’s core democratic principles require that key decisions are made via orderly procedures that support the application of sound judgment and review, and that reduce the risk of making decisions based on intuition, impulsiveness, or personal and political considerations, which could prove disastrous.

In its final report, the Winograd Commission found that the prime minister should have held more continuous discussions regarding the war and its progress with the security cabinet, and that the fact that cabinet discussions were not held on a regular and frequent basis “contributed negatively to the way in which the war was conducted and to its outcomes.”

In fact, Prime Minister Netanyahu himself has recognized in the past the importance of involving the security cabinet in making decisions on defense issues. When he met with the staff of the State Comptroller’s Office in 2015, as part of a review conducted following Operation Protective Edge, Netanyahu said that the security cabinet should make the main decisions regarding the conduct of the war, ending the war, approving ceasefires, and other key decisions.

At the same time, his office stated that the powers of the security cabinet should not be grounded in legislation “due to concerns that this would harm the prime minister’s ability to run the country.” By contrast, the state comptroller was of the opinion that legally formalizing the powers of the security cabinet would ensure that decisions are made by majority vote, in accordance with the democratic principles of the State of Israel, and would increase public confidence that the cabinet’s decision-making processes are conducted properly.

In any case, the Amidror Commission appointed in 2016 by the prime minister to formulate recommendations on the work of the security cabinet, and whose recommendations were later adopted by the security cabinet, emphasized that substantive changes in combat plans, transitions between different stages of such plans, and significant changes arising from developments in the field all require that the security cabinet is updated and that the implications of these changes are made clear.

Inclusive decision-making is crucial for a democratic government

It should be noted that an essential component for sound decision-making in a democracy is an active government that takes full responsibility for both the substance and the process of its decisions and whose ministers demand that orderly procedure is followed for discussing questions of war and peace. In other words, government ministers in general, and security cabinet ministers specifically, also bear responsibility for directing the war.

As the Winograd Commission explained, when ministers do not operate in this manner, this can lead to flawed oversight of defense-related decision-making. The National Security Council—the staff forum in the Prime Minister's Office serving as the headquarters for foreign affairs and national security issues—is also required to express its independent opinion on every foreign policy and defense issue under consideration by the prime minister.

This ensures that a standard of suitable professional staff work is carried out relating to these issues and creates a structure for their organizational memory.

In practice, this is not the first time that Prime Minister Netanyahu has refrained from convening the security cabinet when giving the green light to actions that could lead to a regional conflagration.

For example, the launch of a military operation in Gaza in May 2023, the recent decision to assassinate Ismail Haniyeh, and the decision this week to conduct a preemptive attack in Lebanon are all operations that might even fall under the scope of section 40 of the Basic Law: The Government, and therefore require cabinet approval. As the state comptroller has pointed out in the past, decisions with fateful consequences should not be left in the hands of a very small number of decision-makers.

Particularly in times of war, it is critical to implement the important conclusions and recommendations reached in the aftermath of Israel’s previous wars, regarding the vital importance of the security cabinet on issues that affect the security of Israel’s citizens.

Particularly in these times, it is crucial that the security cabinet fulfills its responsibility and discusses the negotiations for the return of the hostages and a ceasefire in an in-depth and orderly manner – as this is an issue of the greatest public and moral sensitivity, and of critical importance to national security.

Prof. Amichai Cohen is a senior fellow at the Israel Democracy Institute and a member of the Faculty of Law at Ono Academic College.

Adv. Mirit Lavi is a researcher at IDI’s Center for Security and Democracy.