On December 29, 2003, the Constitution, Law, and Justice Committee held a meeting on the Basic Law: the Israel Defense Forces, including additional related topics.
The requirement of serving in the Israel Defense Forces (IDF).
Many speakers suggested anchoring the military service requirement in the constitution, and to refer therein to a law for the explicit details of the draft. It was recommended that the constitution or the law explicitly define who is subject to compulsory military service, rather than retain the current arrangement, which empowers the Minister of Defense to decide on this issue (an arrangement the High Court of Justice has criticized and which is likely to be rendered unconstitutional by any constitution approved in Knesset). The current Basic Law: Human Dignity and Liberty, in fact, already prohibits revoking a man or woman’s freedom, including in the ranks of the IDF, except according to law. It was also recommended that the constitution detail what sorts of missions soldiers can be required to carry out, and to adjust this article to agree with the article establishing the general and legitimate objectives for the military and its use.
The army answers to the elected civil authorities.
Committee Chairman MK Michael Eitan (Likud) opened the meeting with a discussion of the army’s accountability to the political level, i.e., the Government. MK Eitan called this issue the most important one in the establishment of the military’s place in democratic society. On the one hand, the army is an instrument intended to secure the state, the most basic interest of society. On the other hand, the more effective, strong, and powerful such instruments are, the more dangerous can be their use without appropriate supervision. It is important, therefore, to establish in principle and explicitly the answerability of the army and its activities to the elected civil authorities which articulate, at the end of the day, the will of the people as it is expressed in the democratic system. MK Eitan pointed out that the extant Basic Law: The Army establishes the army’s accountability to the civil authorities, but does so too vaguely. The lack of clarity derives from two issues. First, the law itself is vague, establishing that the army answers to the Government and to the Minister of Defense, but does not explain the relationship between the Government and the Minister of Defense or give any special standing to the Prime Minister. Thus it is unclear, for example, what happens when the Government and the Minister of Defense – or the Minister of defense and the Prime Minister – disagree. Whom does the Chief of Staff obey? Secondly, the law does not detail what kinds of military activity require what sorts of approval or guidance. Article 40 of the Basic Law: The Government establishes that a declaration of war must be made by the Government and brought to the Parliament for approval, but makes no provisions for military activity of a narrower scope. Does, for instance, an attack on a particular installation which is likely to have widespread ramifications constitute a declaration of war? MK Eitan finally posed the question of whether the constitution should devote a separate chapter to the army, or whether it is preferable to include the instructions regarding the army in the chapter on the Government. MK Eitan preferred the second options, since the military is not an independent branch of government, but rather part and parcel of the instruments at the disposal of the executive branch. The inclusion of these laws in the chapter on the Executive branch will testify to its accountability to civil authorities. MK Eitan referred the question of the army’s accountability to the civil authorities to former Defense Minister Moshe Arens, who pointed out that Article 2 of the Basic Law: The Army establishes that: Subordination to civil authority 2. (a) The Army is subject to the authority of the Government. (b) The Minister in charge of the Army on behalf of the Government is the Minister of Defence. Chief of the General Staff 3. (a) The supreme command level in the Army is the Chief of the General Staff. (b) The Chief of the General Staff is subject to the authority of the Government and subordinate to the Minister of Defence.
The question arises, what is the relationship between the army and Chief of Staff’s accountability to the Minister of Defense and their accountability to the Government? MK Eliezer Cohen (Ha’Ichud Haleumi) noted that a clear answer to this question is especially important today, when decisions in war are made on a very short timescale, and especially in light of recent instances in which field commanders received contradictory orders from the Chief of Staff and from the Minister of Defense.
Should the Defense Minister answer to the Prime Minister?
Former Defense Minister Moshe Arens expressed the opinion that, although the law does not explicitly say so, the established practice – and it is a good one, he said, at that – is that the Prime Minister is briefed in all instances of important military action, and his or her approval is a condition for the execution of the action. In other words, the chain of command is such that the Chief of Staff answers to the Defense Minister, who in turn answers to the Premier. Professors Ze’ev Segal of Tel Aviv University and Ariel Bendor of Haifa University claimed that if, indeed, the Prime Minister is the final arbiter, that must be mentioned in the constitution – this would be a significant change from the current situation, in which the Prime Minister does not merit so much as a mention in the Basic Law. Professor Mordechai Kremnitzer of the Israel Democracy Institute, on the other hand, preferred not to define the Prime Minister as a “Super-Defense Minister.” The Minister of Defense already answers to the Government, he pointed out, by law; there is no need to make him directly subservient to the Prime Minister as well. The alternative would strengthen the current tendency to draw both the Prime Minister and the Defense Minister from the ranks of the army; this is an undesirable situation. We would prefer to wean Israel in the years to come, he explained, from a long line of leaders from the military. In order to avoid the inconvenience involved in requiring full cabinet supervision of major military actions, Kremnitzer suggested a small forum of three to five ministers, including the Prime Minister, who would supervise the military.
How to ensure the Government hears a wide variety of opinions on security issues.
MK Avraham Burg (Labor) and Professor Mordechai Kremnitzer expressed their concerns that the government is not currently presented with a wide range of alternative recommendations for action; the army’s recommendations dominate. The government does not, they said, receive sufficiently varied information and analysis, but rather is fed them overwhelmingly by the very body they are meant to supervise. Strengthening the National Security Council, or compelling the government to work out a multi-year security strategy, would help alleviate this problem. One suggestion was to strengthen the status of the National Security Council, a body whose establishment and activity are currently governed by Article 7 of the Government law[1], by elevating the subject to the constitutional level.
[1] “The government shall have a team, which shall be founded and run by the Prime Minister, for permanent professional advice on national security; the Prime Minister shall be permitted to bestow on this body additional areas of consultation.”
Should the military’s goals be defined in the constitution?
Professor Kremnitzer and other participants supported the explicit definition of the military’s objectives in the constitution, as is accepted practice in other constitutions. Kremnitzer said that the commonly accepted approach whereby the army is able to be involved in any area, e.g. education, national and civil service, etc., is undesirable. The army must occupy itself with those subjects which are most appropriate to the military framework and hierarchy. Other participants in the debate supported this view, saying that a clear definition in the constitution of the army’s objectives will prevent the possibility of inappropriate use of the army, such as breaking strikes. MK Eitan, however, warned against a narrow definition of objectives which ties the army’s hands at a time of civil crisis such as an earthquake, or which hampers its ability to send military teams to help with such natural disasters in other countries.
Parliamentary supervision of military actions.
The Committee considered the question of how decisions about broad military actions should be made, and what should be the role of the parliament in making such decisions. The current law establishes that a declaration of law requires a Government decisions, and that an announcement regarding the declaration must be delivered as soon as possible to the Foreign Affairs and Defense Committee of the Knesset. The recommended text for the constitution would expand those areas under this supervision. The text reads, “Widespread military activity, or military action that is liable to lead to war or to a broad military conflict, or which is liable to have far-reaching implications on the security of the state or its foreign relations, requires the approval of the Government or a part of it as shall be established in the law.” Committee members considered this text in detail and discussed how parliamentary oversight could be integrated into the suggested model. Should they require parliamentary approval, they wondered, or at least consultation? Or should the parliament suffice with requiring the Government to inform them of the decision as soon as possible? Participants in the debate warned that a requirement of prior parliamentary approval, or of consultation prior to the decision, could allow plans for military actions to leak out to the media, endangering state security. MK Michael Eitan added that the danger of leaks stems not only from the Foreign Affairs and Defense Committee, but from the Subcommittee for Intelligence and Secret Services as well. It was recommended that every government decision on military subjects be brought to the Knesset or to one of its committees, but that no requirement for parliamentary approval or consultation be imposed for broad military action. Professor Kremnitzer and other participants noted that not every military action is a secret, and supported the theoretical approach requiring Knesset approval – if possible in a given situation – for non-confidential broad military actions, which are some of the most fateful decisions in a nation’s life. Eyal Nun, a lawyer from the Judge Advocate General of the army, recommended that, once a declaration of way has been made, the war should be administered under the supervision and according to the decisions of the Government, which shall report to the Knesset from time to time. The Legal Advisor to the Ministry of Defense, Zviya Gross, warned that any constitutional definition of the procedures of declaring war and supervising military activity will open the door to Judicial Review of these decisions, which could open currently non-justiciable areas to Court intervention.
Cooling-off period for military staff.
Many speakers opined that the current cooling-off period of six months required by law between the resignation of a military man or woman from active service, and his or her entry into political life is too short. Lengthening this required period would help separate the military and political spheres, and would go hand in glove with the arrangements establishing the accountability of the army to the political realm, and the separation of the two.
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