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According to various sources, the current war with Hamas is the first time Israel has invoked Article 40A since the 1973 Yom Kippur War. The invocation of Article 40A, to my understanding, is the equivalent of a formal declaration of a state of war.

Why wasn't Article 40A invoked in the Lebanon Wars (1982 and 2006)?

For the first time in 50 years,Israel has invoked Article 40 Aleph. This means an official declaration of war. obozrevatl.com

Israeli Basic Law(pdf) Article 40 reads, in its entirety:

Declaration of war 40. (a) The state may only begin a war pursuant to a Government decision.

(b) Nothing in the provisions of this section will prevent the adoption of military actions necessary for the the defence of the state and public security.

(c) Notification of a Government decision to begin a war under the provision of subsection (a) will be submitted to the Knesset Foreign Affairs and Security Committee as soon as possible; the Prime Minister also will give notice to the Knesset plenum as soon as possible; notification regarding military actions as stated in subsection (b) will be given to the Knesset Foreign Affairs and Security Committee as soon as possible

Given the heading, it seems reasonable to read "invoking Article 40 Aleph" as the State of Israel declaring war.

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    The original 1968 version of the linked Basic Law does not appear to contain an article dealing with declarations of war, and its article 40 dealt with a different matter, so it unclear how "Article 40A" could have been invoked during the Yom Kippur War. When did the current Article 40 first come into law?
    – njuffa
    Oct 21, 2023 at 3:00
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    Specifically, I found the first mention of declarations of war in the 1992 version of the Basic Law "The Government" at Article 51A. Since my knowledge of Ivrit is limited to about ten spoken words, I had to rely on English-language resources. It is entirely possible that prior to 1992 declarations of war had a different legal basis in Israeli law.
    – njuffa
    Oct 21, 2023 at 4:10
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    I've taken the liberty of changing the title, since this has started to get a lot of votes, and I don't think we want it getting tons of attention with a title that has the problems @njuffa has been pointing out. We aren't here to confuse people.
    – T.E.D.
    Oct 21, 2023 at 16:49
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    I think much of it is a semantic confusion: Israel didn't declare war on anyone, but rather it declared a state of war (i.e., an emergency situation.) However, I can't find a single reference that would clearly state so.
    – Roger V.
    Oct 22, 2023 at 6:36
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    @T.E.D. What I mean is that there are two different legal actions: one concerning international relationships (aka "a state of war between X and Y") the other regarding the nation itself - like the state of national emergency (in this case emergency is war), which allows extraordinary national measures - like the narrow circle of ministers making decisions, calling broader categories of reservists, diverting money to the emergency, etc. Both can be termed state of war, and I argue that it is there is (perhaps somewhat deliberate) confusion between the two.
    – Roger V.
    Oct 23, 2023 at 13:16

2 Answers 2

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Given the wording of the law, it seems like both of those previous operations could be viewed by their government as "military actions necessary for the defense of the state and public security", but not full-fledged wars.

What's the difference? Well, the first thing that pops to mind is that in neither 1982 nor 2006 was Israel's objective to attack the military of the government of Lebanon. In 1982 they were specifically going after the PLO who were using an unfortunate Civil War to hide out in Lebanon, and in 2006 the target was Hezbollah.

In Gaza right now, Hamas yes are similarly hiding out and launching terrorist attacks over the border, like the PLO '82 and Hezbollah in '06. However, Hamas is also in charge of the government of Gaza. In theory, the entire apparatus of the State is at their disposal.

Since its takeover of Gaza, Hamas has exercised executive authority over the Gaza Strip, and it governs the territory through its own ad hoc executive, legislative, and judicial bodies.

This theoretically makes Gaza responsible for the actions of its government (Hamas) carried out from Gaza, and vice versa. It also apparently makes Hamas/Gaza a state entity that war may be declared on, at least according to Israel.

Of course one could also argue that this means Israel also has implicitly recognized Gaza as a sovereign state, which would be new for them. Currently Israel officially recognizes neither Gaza nor Palestine (including Gaza)

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    @njuffa - Not a bad question. I got a look at their 1958 version, and it was completely different. However, while answering that would go to how weird it is to invoke that exact provision, it wouldn't affect how weird it is for the state to be declaring war for this kind of thing, which I take it is more what's being asked about. Presumably in 1973 they did whatever the period equivalent was.
    – T.E.D.
    Oct 21, 2023 at 3:10
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    +1 Hamas is the de facto government, but legally they are still nobody. My own impression was that the state of war has to do with the required level of the national mobilization and possibly the emergency powers given to the government, rather than the legality vis-à-vis Hamas.
    – Roger V.
    Oct 21, 2023 at 4:46
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    @Fizz - The last time the USA declared war was June 2, 1942 against Romania. Its quite unlikely to ever happen again in the forseable future. These days instead Congress generally authorizes medium-term actions (like the 2 Iraqi invasions) under the War Powers Act. They did however invoke NATO's Article 5 after the 9/11 attacks.
    – T.E.D.
    Oct 21, 2023 at 18:27
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    @ShadowWizardIsSadAndAngry as I understand it, the comparison is just like PLO and Hezbollah hide their hardware and personnel in the civilian population center (ie, there's no such thing as an openly declared rocket launch site, nor barracks or base for attackers returning from Israel), that's what Hamas is doing.
    – Martheen
    Oct 22, 2023 at 5:16
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    @LorenPechtel They've defined their borders plenty of times: "from the [Jordan] river to the sea." In other words, they explicitly claim a right to all the land of Israel, leaving the Israelis with nothing. Oct 22, 2023 at 22:58
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Semantics
As I have already pointed out in the comments, there is likely a semantic confusion between the meaning of the term state of war in international law and Israeli law or simply in different languages. That is the term may refer to two different things:

Indeed, many languages refer to Martial law as a state of war, e.g.:

  • Polish : Stan (state) + Wojna (War) = Stan wojenny (Martial law)
    and likewise for Ukrainian and Russian
  • German: Krieg (war) + Völkerrecht (international law) = Kriegsvölkerrecht (Martial law)

Outline of facts
The Israeli declaration has been indeed interpreted by some (most?) media as a declaration of war on Hamas, e.g.:

On the other hand, Hamas is a non-government actor, that is it is not recognized as a legal entity neither by the international organizations, like UN, nor by any governments or parliaments (In those cases where the Palestinian state is recognized, this recognition extends to Palestinian Authority, as the sole legal representative of the Palestinian people.)

Finally, the actual government declaration does not mention Hamas, but only the threat originating from Gaza (Google translate):

in honor of
Chairman of the Foreign Affairs and Security Committee
the knesset

Dear,

In accordance with Section 40(c) of the Basic Law: The Government, I would like to inform you that the Ministerial Committee for National Security Affairs has decided to conduct significant military operations by virtue of the authority given to it in Sections 40(a) and 40(a1) of the Basic Law: The Government as of October 7, 2023 at 06:00 due to the war that was imposed on the State of Israel through a murderous terrorist attack from the Gaza Strip, and after the Prime Minister became convinced that the authority was required for reasons of state security, including reasons of secrecy involved.

Best regards,
Yossi Fox
Secretary of State

Copy: Prime Minister
Legal Adviser to the Government
The Director of Foreign Affairs and Security of the Knesset

Implications of the state of war
I haven't had a chance to discuss this with a fluent Hebrew speaker, but using the keywords from the above document I came to this article, which seems to address nearly directly the question in the OP (Google translate again):

For the first time since 1973: what are the consequences of declaring war, and who is authorized to do so?
The extraordinary step that Israel announced has no immediate practical consequences, yet experts believe that it is important • How were wars conducted in the past without such a declaration, who prevented the Prime Minister and the Ministry of Defense from declaring war on their own, and how the move indirectly communicates to the unity government • Globes' whistleblower

The dramatic events that have been taking place in Israel since Saturday also led to a formal decision the likes of which has not been made in Israel for decades. According to media reports, after the attack launched by Hamas, the cabinet announced that as of October 7 (Saturday) at six in the morning, Israel is officially in a state of war. As Prof. Kobi Michael, a senior researcher at the National Security Research Institute, wrote, and most symbolically, this is the first time that Israel has announced such a situation since the Yom Kippur War in 1973. That is, even in major events that we are familiar with from the past, the leadership in Israel was not required to make such an announcement. What does the move mean, how is it expected to affect the situation in the country and the citizens, and who is even allowed to make such a decision? We wrote about it in the following lines.

Who is authorized to declare a state of war?
Section 40(a) of the Basic Law: the government states that "the state will not start a war and will not take a significant military action that could lead, with a level of probability close to certain, to war except by virtue of the government's decision". That is, the authority authorized to take such a step is the government. However, in 2018, the law was changed so that the cabinet can also declare war (see the expansion below), and according to Prof. Amichai Cohen, a researcher in the program for national security and democracy at the Israel Democracy Institute, this is the main forum for making decisions in this regard, at least on a formal level. By the way, section 40(c) also requires that when such a decision is made, the government informs the Foreign and Security Committee of the Knesset, and that the Prime Minister informs the Knesset about it, but the approval of these bodies is not necessary. It should also be noted that this is not a "declaration of war" - a procedure that according to Cohen no longer exists in practice. That is, there is no need for any declarative statement to carry out offensive or warlike actions of any kind.

What change took place in the matter in 2018?
In the same year, at the initiative of Prime Minister Binyamin Netanyahu, two small sections were added to the Basic Law. The first actually authorized the government to delegate its powers on going to war to the cabinet; And the second stated that "in extreme circumstances" the Prime Minister and the Minister of Defense could even make the decision alone. The second change provoked widespread public criticism and after about three months it was canceled (although at the same time the need for a "quorum" - a minimum number of cabinet members - to be present at the time of the decision was also canceled).

In practice, Prof. Cohen explains, even before this change, the main forum where decisions of this type were made was at most the cabinet, and in many cases the decisions were actually made in even smaller bodies. In other words, it is not certain that the framing of the decision, in some media reports, as if Netanyahu had unusually bypassed the government here, is the most correct way to present the move.

[Omitting the paragraph with a table regarding previous warrs]

Does the declaration allow exceptional military measures?
The short answer is no. The law does not include definitions that would differentiate between "war" and "other military operations", nor does it distinguish between operations that are allowed to be carried out in each of the situations. Thus, for example, the last two Prime Ministers, Netanyahu and Yair Lapid, embarked on military operations (Shield and Arrow and Aloth Hashar, respectively), with the approval of the Legal Adviser to the Government, without going through the Cabinet at all.

Moreover, as Prof. Cohen explains, there is also no definition of the role of the cabinet during the war. "Ultimately, a fundamental law: the army states that the IDF is subject to the government, so it can delegate powers to the cabinet, but the government or the cabinet cannot completely abdicate this responsibility by transferring the management of the war to the prime minister alone." On the other hand, "there are no clear definitions on the subject , and there is no ruling." Thus, different styles were created over the years depending on the character of the Prime Minister. Levi Eshkol in the Six Day War, he says, was an example of someone who very much involved the Cabinet in decision-making. Golda Meir had "Golda's Kitchen." The Winograd report passed Criticism that under Ehud Olmert the cabinet did not meet many times. And "Netanyahu really does not like this institution of the cabinet and he prefers to make decisions alone, or in a small group. Over the years, he had various informal institutions such as the 'Shivaiya' or the 'Kitchenon'". This may be significant even now, when negotiations are underway on the addition of Benny Gantz and Yair Lapid to the government. Today, for example, it was announced that in the state camp, their joining is conditioned by the fact that " A limited war cabinet will be established," and if that is the case, this time too the military action will be conducted in a small forum.

So what is the point of declaring war anyway?
Prof. Michael, whom we mentioned at the beginning of the remarks, believes that the announcement that was made now "has an additional significance, also from a cognitive and operational point of view". Cognitively, he wrote in an article he published with Dr. Ilana Kvartin, "A declaration of war informs the entire nation that the lives of the citizens are about to change and that they are about to bear a heavy burden. Through this declaration, the executive authority receives the political and moral authority (and legitimacy) to wage war in the name of the people and to use the military forces at its discretion." They also believe that "the mere declaration of war can lead the other side to change its policy, and then the declaration of war becomes, in fact, a type of of deterrence". This, because in this action "the state has shown that it is allocating all the resources required for this".

And what is the benefit of such a declaration specifically vis-a-vis Hamas?
Here the researchers count two main advantages. The first concerns the anomaly that has been practiced until now, according to which even during conflicts Israel continued to deliver raw materials, fuel, electricity and water to the Strip, alongside humanitarian aid. "These improved and are improving Hamas' ability to stand against Israel, weaken the opposition to it at home and prolong the duration of the fighting," the researchers write. Now, Israel may stop doing this, and it has already been decided, for example, to stop supplying electricity to the Strip.

The second advantage concerns the provision of legitimacy in the international field. "The prohibitions on the use of force, or the limitation of proportionality in international law, mostly apply in conflict situations and not in war," the researchers write. "The space for military action and the possibilities of maneuver are widest where war has been declared... When the non-state opponent, Hamas, is unable to win the war but has been winning for years in an asymmetric conflict, declaring war on it will turn the disadvantage into an advantage."

Does the announcement have financial significance?
As far as we have been able to find out at the moment, the announcement has no clear economic derivatives. In some places it was announced that the declaration would affect entitlement to compensation, but the Tax Authority explained to us that declaring war would not change in this regard. The Property Tax and Compensation Fund Law does indeed define two types of damage - "war damage" which is direct damage; and "indirect damage", which pertains to various losses caused as a result of acts of war or hostilities "in the area of settlement of books" - however, the Tax Authority says that a formal declaration of war does not matter from this point of view. "The direct compensation is given regardless of whether an official war has been declared or not," while the indirect compensation cannot currently be granted beyond the book settlements, and "if the state wants to do so, it will have to establish new regulations."

(emphasis is mine)

The table omitted in the translation above is also of some interest, as it shows how some of the wars/military operations were managed:

Year War Manner of management
1948 Independence war David Ben-Gurion managed the campaign in a centralized manner and even thwarted the establishment of a 'war cabinet'
1973 Yom-Kippour War Through Golda Meir's "Kitchen" that included an informal group of ministers with a changing composition
2006 Second Lebanon War The Cabinet and the "Forum of the Seven" did not meet many times and management was largely entrusted to Olmert, Peretz and Halutz
2009-2012 Various military operations in Gaza Netanyahu was helped by forums such as "the small kitchen", and "the forum of the seven" (the small kitchen and four other ministers), which later consisted of 8 and 9 members

What is referred to as "small kitchen" or "war cabinet" is usually the prime minister, the minister of defense and the foreign minister, although in some cases the army chief-of-stuff can be a part of it (while the foreign minister is not always present) - as in the case of 2006 Lebanon War (The Second Lebanon War).

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