Article Israel: Government Declares War and Special Situation on Home Front Following October 7 Hamas Attacks

Following the attack on Israel by Hamas on October 7, 2023, the Israeli government issued a number of declarations establishing a “special situation” concerning the “home command” and the war against Hamas.

The Israeli Government’s Decisions After the Attacks

At 8:00 a.m. on October 7th, the minister of defense issued a declaration of a special home front situation in the Gaza border region. At 6:00 p.m. that day, the minister for national security conveyed to the Israel police commissioner that he had declared a civil emergency event throughout the State of Israel, with the exception of the area within a radius of 80 kilometers (about 49.7 miles) from the Gaza Strip, in which a special home front situation had already been declared. At 8:00 p.m., the defense minister declared an expansion of the special home front situation to apply to the entire country.

On October 8, 2023, the Israeli government passed Resolution 941, which extended the application of the special home front situation initially declared by the minister of defense.

On the same day, the Israeli cabinet confirmed a state of war effective 6:00 a.m. on October 7, 2023. According to the government’s statement, “[t]he war that was forced on the State of Israel in a murderous terrorist assault from the Gaza Strip began at 06:00 yesterday (Saturday, 7 October 2023).” The decision was issued in accordance with section 40 of Basic Law: The Government, as amended.

On October 11, 2023, a national emergency government was established. According to the agreement for its establishment, the existing cabinet would be joined by ministers of Benny Gantz’s National Camp party. The cabinet would establish a war management cabinet to operationally implement the cabinet’s decisions. The war cabinet currently includes Prime Minister Benjamin Netanyahu, Minister of Defense Yoav Galant, and Knesset member Benny Gantz.

Special Situation in Home Command

The Civil Defense Law, 5711-1951 specifies situations in which the Israel Defense Forces (IDF) are granted special powers in the combat home front. The first situation is one in which an attack is carried out on Israel. The second, a “special situation on the home front,” is declared when there is a high probability that an attack will occur on the civilian population in the entire country or in a certain territory. The authority to declare a special situation on the home front is granted by law to the government (or to the defense minister if the government has not declared it) and must be approved by the Knesset Foreign Affairs and Defense Committee within five days. A declaration by the defense minister expires within 48 hours unless extended to five days by the government. A further extension requires a decision by the Knesset Foreign Affairs and Defense Committee.

Among the authorities that may be exercised by the IDF in the area subject to the special situation in home command are the ability to require civilians to stay in shelters, to prohibit or restrict studies in educational institutions, and to prevent entry or exit from certain areas to save life or property.

Declaration of War

In accordance with sections 40(a) and (a1) of Basic Law: the Government, as amended, “[t]he state will not start a war or take significant military action that is likely to lead, at a probable level, to war, except by virtue of a government decision.” Israeli scholars have suggested that “it would appear that the law intended to include various major military operations against terrorist organizations such as Hamas or Hezbollah under the definition of ‘war.’”

In accordance with section 40(c) of the basic law, the government’s decision to go to war must be conveyed as soon as possible to the Knesset Foreign Affairs and Defense Committee (if the decision was made by the cabinet, the notification must be made as soon as possible to the government and to the subcommittee of the Knesset Foreign Affairs and Defense Committee). The prime minister is also required to deliver an announcement to the Knesset plenum as soon as possible.

Some academics have opined that the declaration made by the Israeli government has both moral and legal implications:

The scope of military action and the possibilities of maneuver are extremely wide where war has been declared[.] … When the non-state adversary, Hamas, is unable to win the war but has been winning an asymmetric conflict for years, declaring war on it will turn the disadvantage into an advantage.