Israeli Gov’t Gets Green Light to Pass Gas Deal Without Knesset Vote

Chief justice says government does not need to lawmakers’ approval for international agreements

By Chen Maanit, HAARETZ

Supreme Court President Esther Hayut at the court in Jerusalem, on Thursday.Credit: Ohad Zwigenberg

The Knesset does not need to vote on international agreements made by Israel – including the contentious maritime deal with Lebanon, Supreme Court President Esther Hayut ruled on Thursday.

Speaking during a High Court of Justice hearing on four appeals against the deal reached with Lebanon last week, Hayut noted that the government’s regulations do not require the cabinet to present every international agreement to the Knesset. Among the appellants were the Kohelet Policy Forum, the Lavi Organization and MK Itamar Ben-Gvir.

The cabinet hopes to approve the maritime border deal within the next few days. According to the Israeli military’s representative to the negotiations with Lebanon, the IDF believes that if the agreement is not signed by the end of this month, it will not be signed in the near or long term, due to Lebanon’s political and economic crises.

Hayut told Lavi’s representative, attorney Itzhak Bam, that “with regard to international deals and treaties, the formal document is the government’s regulations. The Knesset has not passed any laws requiring a vote on these issues. According to the regulations, there are cases in which the cabinet can use its discretion and not even inform the Knesset about communications, if an agreement is secret. The question, in this case, is whether the cabinet examined all the relevant aspects and concluded that the agreement could be brought before the Knesset without a vote, which is a reasonable course of action.”

Hayut added that the government has a responsibility to prevent a violent escalation with another state. This “means that the cabinet is saying that the main reason it is urgent and important to reach an agreement is explained in classified documents which cannot be fully provided to the Knesset. This makes it difficult to provide the Knesset with the detailed reasons; [the government] takes responsibility if there is an escalation, after all. With authority comes responsibility, and [the government] has decided to present the agreement with diminished parliamentary oversight, without a vote in the plenary.”

Justice Uzi Vogelman told Bam that “the concern is that the Knesset does not have all the information the cabinet has” in order to make a decision. “Why can’t a discussion at the Knesset’s Foreign Affairs and Defense Committee suffice?” he asked.

MK Ben-Gvir argued that the negotiations over the deal resumed only after an election was called. Hayut questioned the basis of this statement, and Ben-Gvir responded: “I know the negotiations blew up and I know that when there is an election, negotiations pick back up. It’s unreasonable. As soon as an election was called, these things should have stopped. The closer we get to an election, the more things should be monitored.” He added that “I also have a problem with the government’s argument, since it devalues lawmakers. It means that they don’t trust us.”

Attorney Ran Rozenberg, who is representing the state, said that Ben-Gvir’s claims were factually incorrect. “The negotiations are constant and ongoing,” he said. “The current mediator, [Amos] Hochstein, started working at the beginning of October 2021, and any ‘blowing up’ of negotiations is unknown to me.”

Attorney Zehava Gur, who represented several individuals who filed an appeal against the agreement, said that the government was operating with the election in mind. To this, Justice Vogelman responded by asking whether she was also accusing the defense establishment of having ulterior motives.

Attorney Bam said that it was customary to present agreements which have diplomatic importance for the Knesset’s approval, an even more important issue during a caretaker government’s tenure. “There is a need to impose this on the government, otherwise we’ll reach a situation in which a caretaker government has a golden opportunity to make controversial decisions. A caretaker government is not allowed to appoint a head of a religious council in Kiryat Ono, but makes a deal with an enemy state, conceding territory and gas reserves which are estimated to be large ones.”

Justice Vogelman rejected this comparison, saying that appointing a religious council head is not urgent, but “if there is an issue that is essential to national security, and we see the classified material, then that is a different matter. Ultimately, responsibility lies with the government, not the court.”

Attorney Ariel Erlich from the Kohelet Forum argued that the agreement should be decided by a referendum, based on one of Israel’s Basic Laws. Supreme Court President Hayut expressed her doubts regarding the applicability of that Basic Law to this agreement. “The question is whether there is any indication that any of the territory included in the agreement is an area that is under Israel’s jurisdiction, with the agreement removing it from such jurisdiction,” said Hayut.

In its response to the suit, the state argued that even if the signing of the agreement by a caretaker government raises difficulties and demands extra caution, “there are security-related reasons, as well as hefty diplomatic and economic ones, which support the approval of the deal, which followed a lengthy negotiation process that spanned years, undertaken by several governments, including during election periods.”

The state said that it intended to privately present the judges with the threats and considerations that necessitate the deal’s urgent approval. It said that there is a “unique window of opportunity that allows the agreement to be signed, a window which could close before the election, with no way of assessing when another opportunity would arise.”