Transitional Government and Potential War: Does Netanyahu Legally Have the Authority to Strike Iran?

Amidst the political vacuum following the Knesset elections, the powers of the transitional government overlap with arrangements for forming the new government, while the Iranian file remains at the top of the Israeli security establishment's priorities, amid possibilities of renewed military confrontation with Tehran.

Despite President Isaac Herzog's assignment of Gadi Eisenkot to form the next government, Benjamin Netanyahu still retains prime ministerial powers as head of the caretaker government, including oversight of the security establishment and management of Israeli policy toward Iran.

According to a report by the Hebrew site "Walla," this overlap between the political transition phase and the continuation of executive powers places the decision to resume attacks on Iran in a circle of legal and political complexities, especially since any wide-scale military move may exceed the repercussions of a bilateral confrontation and open the door to a new regional escalation.

What does the law say?
Legally, according to the "Walla" report, the Basic Law does not deprive the government, even if it is a caretaker one, of the authority to wage war.

Article 40 of the Basic Law states that Israel will not wage war, or undertake a major military operation that could lead with near-certainty to the outbreak of war, except by a decision of the government.

The article also allows delegating this authority to the Ministerial Committee for National Security Affairs, i.e., the Political-Security Cabinet. The article does not distinguish between a regular government and a transitional one.

As for Article 30, it stipulates that the outgoing government continues to perform its duties until a new government is formed, which means that Netanyahu and his government remain the holders of authority despite Eisenkot's assignment.

However, the Supreme Court has obligated caretaker governments to exercise restraint, reasonably and proportionately, due to the change in their democratic legitimacy; the more an action can be postponed, the greater the need for such restraint.

In the case of a direct and immediate security threat, the scope of powers remains broad. Also, the Prime Minister alone is not authorized to make a war decision, as it must be issued by the government or by the legally delegated council.

Historical precedents
Historically, transitional governments have led wide-scale military operations. In December 2008, Ehud Olmert, head of a caretaker government, launched Operation "Cast Lead" in the Gaza Strip after intense rocket shelling, which lasted about three weeks.

In May 2021, Netanyahu himself led Operation "Guardian of the Walls" during negotiations to form a new government, in response to rockets fired by Hamas from Gaza, lasting 11 days.

The third precedent was in August 2022, when Yair Lapid, the interim Prime Minister, launched Operation "Breaking Dawn" against Islamic Jihad on an Israeli initiative, without a cabinet meeting, after the legal advisor approved that it was unlikely to lead to war.

According to the "Walla" report, these precedents prove that the transitional government is not prevented from using force, but they were either responses to direct attacks or limited-scope operations. Renewing a campaign against Iran with the aim of toppling the regime differs in scale and potential consequences.

The Washington gap and Netanyahu's insistence
The scene becomes more complex due to the widening gap with Washington. US President Donald Trump stated that he sees no need to resume military strikes at this stage, and that his administration is holding talks to reach an agreement.

Meanwhile, Secretary of State Marco Rubio confirmed that economic pressure through sanctions and naval blockade is effective enough, and its effects will become clear in the coming weeks and months.

In contrast, Vice President JD Vance is personally involved in indirect contacts with Iran via intermediaries, and the possibility of expert-level meetings is being studied.

Netanyahu, on the other hand, continues to adhere to a tougher stance. In his speech before the Knesset, he called for the formation of a national unity government and affirmed that the only way to permanently remove the Iranian threat is to topple the regime in Tehran, warning of possible international acceptance of resuming the nuclear program.

The dispute with Eisenkot
In this context, Eisenkot sent a letter to Netanyahu demanding restraint and avoiding deploying forces without a direct and immediate threat that cannot be postponed, considering that such a step could harm democracy and public trust.

The Prime Minister's Office rejected these claims, confirming that all decisions were based on security considerations and full coordination with the security establishment, accusing Eisenkot of injecting politics into the security discussion.

The government is expected to meet next Sunday, after a break of more than a month, while instructions have been issued to the defense establishment to raise readiness levels in anticipation of a possible attack on Iran.