On 8 November, at the president’s official residence in Jerusalem, Isaac Herzog gave the mandate to form Israel’s next government to Gadi Eisenkot, the former army chief, and not to the man who has held the office for most of a generation. The election of 27 October gave neither bloc the 61 seats a Knesset majority requires. In the president’s consultations about 67 lawmakers, some from Arab-led parties among them, recommended Eisenkot, and only 46 recommended Benjamin Netanyahu, according to the Associated Press. Herzog himself warned that the tally settled nothing, pointing to “mutual vetoes” between the camps and within them.
A mandate is a document with a clock attached. Basic Law: The Government gives the nominee 28 days, which the president may stretch by up to 14 more. If Eisenkot fails, Herzog may turn to Netanyahu and ask whether he can do better.
Meanwhile, the man without the mandate still governs.
A paradox in the statute
Writing for Al Jazeera, Mohammad Mansour set out what that means, and Ehab Jabareen, an analyst and a Palestinian citizen of Israel, put it in a single sentence: “Netanyahu lost the priority of forming the government, but he did not lose the current premiership.” Then he added the part that counts: “His power now lies in that his opponents need an agreement to remove him – and their differences are the reason for his current [political] survival.”
Jabareen calls it a “constitutional paradox”: a prime minister without a popular mandate who still holds the keys to the state’s strongest institutions. One could put it more plainly. Rulers rarely fall the moment the votes are counted. They fall when the people who counted the votes agree on who comes next, and that agreement is the scarcest thing in Israeli politics this autumn.
The law of continuity
Israel has no single written constitution, only a series of Basic Laws. Section 30 of the one on government says the outgoing cabinet goes on doing its work until a new one is formed. “Consequently, Netanyahu and his government continue to work until a new government gains the confidence of the Knesset under the principle of government continuity,” Jabareen said. “And in this period, the government retains the powers of managing the state, security and foreign relations, but its use is subject to the duty of reservation and restraint.”
The phrase “transitional government” never appears in the statute. Nor does the text cut a caretaker’s powers down to routine business; the Law Library of Congress notes that Israeli constitutional law has no such doctrine. What restraint there is comes from Supreme Court rulings and the attorney general’s guidelines, the Israel Democracy Institute explains, and the Knesset never wrote either into law. Restraint, in other words, depends on the restraint of the one being restrained.
Old wars, not new ones
The army is the real question. A caretaker Netanyahu can still make appointments and take security decisions, though Jabareen expects every such step to be scrutinised, because legal power is not the same as “legitimacy.” Section 40 of the Basic Law lets the state go to war only by a decision of the cabinet. He cannot start one alone.
He doesn’t need to. “The most applicable scenario is not inventing a war from scratch, of course. We are talking about igniting and employing an existing threat. We are talking about Iran. We are talking about Lebanon,” Jabareen said. It is worth recalling that only weeks before the vote Netanyahu called toppling Tehran his primary objective.
Eisenkot and his allies have no seats in the current security cabinet. So the caretaker decides how intelligence reaches the ministers who do. “What is presented to the ministers as a danger that can be contained? And what is presented as a final opportunity [for potential attacks] that cannot be delayed?” Jabareen asked. The Shin Bet, the internal security service, reports directly to the prime minister, and his caretaker status changes nothing about that.
The ledger and the courtroom
At home the limits are tighter. Maysara Bahr, a writer on Israeli affairs, told Al Jazeera that “Netanyahu can take some actions that may hinder the work of the next government,” leaving his successor with greater “indebtedness.” One door stays shut. A caretaker cannot pass new legislation to protect himself from the corruption trial that has followed him for years.
Working the seams
So the struggle moves to the opposition’s weak points. Eisenkot, backed by the other opposition leaders, is negotiating with possible outside partners, Arab parties among them. Jabareen says Netanyahu is exploiting exactly this, telling Zionist voters and the parties that represent them that an Eisenkot alliance would depend on Arab votes. Bahr goes further, warning that the prime minister might encourage domestic unrest to derail the handover and would do whatever it takes to stay in power. That is his warning, not an established fact.
Eisenkot, for his part, promised “creative and unconventional” ways to assemble what he called a “national emergency government,” the Times of Israel reported, and invited members of Likud and Religious Zionism to join him. The final count left no route to 61 that would not break some campaign pledge.
Elsewhere, the same law and other habits
None of this is unusual among parliamentary democracies. In Britain and India a caretaker prime minister has the same legal powers as an elected one, but convention keeps him from major policy decisions, war above all. In the United States an outgoing president works to a fixed deadline of about two and a half months before the inauguration, with Congress watching his budgets and appointments closely.
Israel has the powers without the fixed date. Its caretaker keeps governing until his rivals agree, among themselves, on who replaces him.