Israel's Netanyahu Government Operates Under Strict Judicial Oversight During Transition

Despite its mandate ending after the recent Israeli elections, Benjamin Netanyahu's caretaker government retains significant powers, including the authority to declare war and sign political and security agreements. However, these powers are subject to stricter judicial and administrative limitations than those imposed on regular governments. Gadi Eisenkot has been tasked with forming a new government, while Netanyahu's administration manages the transitional period.

A legal review by researchers at the Israel Democracy Institute, as reported by Channel 12, indicates that while Israeli law does not explicitly impose broad restrictions on transitional governments, Supreme Court rulings and directives from the Attorney General mandate restraint. Decisions made by caretaker governments must meet stringent criteria, primarily demonstrating vital and urgent necessity.

The review, conducted by researchers Amir Fuchs, Moran Kandelstein Heine, and Ofer Kenig, notes that Israeli law does not prohibit a transitional government from initiating war or major military operations, as they remain responsible for handling urgent security developments. However, Basic Law: The Government requires decisions for war or significant military actions likely to lead to war to be made by the full government or the Security Cabinet, with subsequent notification to the Knesset's Foreign Affairs and Defense Committee.

While the Supreme Court has granted transitional governments considerable discretion in foreign and security affairs, it insists on a substantive security need to justify decisions. The researchers recommend increased parliamentary oversight and informing opposition leaders of critical security decisions, especially after Eisenkot's mandate to form a new government.

Netanyahu's government continues to operate under the principle of "continuity of government," which keeps a caretaker government in power until a new one is formed to prevent administrative vacuums. This principle, however, does not grant it the same political mandate, as it no longer holds parliamentary confidence. The "Vais ruling" precedent requires transitional governments to exercise "restraint," with a narrower scope of legally "reasonable" decisions compared to regular governments. Researchers warn against exploiting this period for personal or political gain, or making hasty decisions that could bind the incoming government.

Transitional governments are not automatically barred from political negotiations or signing international agreements, even on sensitive security and political matters. Precedents include the Supreme Court allowing Ehud Barak's transitional government to continue negotiations with Syria and the Palestinian Authority in 2001, and approving Yair Lapid's transitional government's maritime border agreement with Lebanon in 2022, based on security necessity and a "window of opportunity."

Regarding appointments and dismissals, the caretaker prime minister can dismiss ministers. While Basic Law allows appointing a Knesset member as a minister to replace a departed one without Knesset approval, the Supreme Court has narrowly interpreted this, limiting it to cases preventing an administrative vacuum. Permanent appointments to senior positions face strict judicial and administrative constraints and should generally be avoided unless a vital public need exists and no reasonable alternative, such as a temporary appointment, is available. The article cites the cancellation of Meni Mazuz's appointment as head of the advisory committee for senior appointments as an example of these restrictions, while the appointment of the IDF Chief of Staff in 2022 was permitted due to vital security needs.