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High Court of Justice: Israel Must End Ultra-Orthodox Draft Exemption

The court ruled unanimously that the longstanding exemption is unjustifiable | Judges: “The burden of inequality has become sharper than ever and requires the advancement of a sustainable solution”

שופטי בית המשפט העליון בדיון בעתירה על גיוס תלמידי ישיבות (צילום: יונתן סינדל / פלאש 90)
Judges of the High Court of Justice at the discussion about enlistment of ultra-Orthodox Israelis. (Photo: Yonatan Sindel/Flash90)
By Or Guetta

In a unanimous decision, the High Court of Justice ruled yesterday that no legal framework exists justifying Israel’s exemption of Haredi men studying in yeshivas from military service. The court directed the state to begin enlisting ultra-Orthodox Israelis and ruled that the state must stop funding Torah study for ultra-Orthodox men eligible for military service.

The decision was made in response to a petition brought forward by the Movement for Quality Government in Israel along with other organizations. An interim decision had previously been made in March, which ruled that government funding to yeshivas serving men otherwise eligible for military service would be frozen starting in April.

Ultra-Orthodox Israelis have avoided military service, which is otherwise mandatory, through a measure that has allowed them to request an annual deferral of enlistment each year until they are no longer required to enlist. That legal workaround was not encoded permanently in the law books, but was rather a longstanding temporary measure.

More than seven years ago, the Supreme Court found that workaround to be an illegal violation of the right to equality, but the ruling never took effect following repeated requests from the Knesset to draft alternative legislation regarding Haredi enlistment.

Last June, the temporary measure expired, and the Knesset passed another temporary measure calling on the Israeli military not to enlist Haredi yeshiva students until March 31, 2024. On April 1, that measure expired without the passage of any alternative.

In yesterday’s decision, the judges cited the 1998 case of Rubinstein vs. The Minister of Defense, during which the court held unanimously that decisions about service deferrals for Yeshiva students have to be made through legislation in the Knesset and not through executive decision. Therefore, the court found yesterday, the government lacks the executive authority to order the military not to enlist yeshiva students.

The court emphasized that the enlistment law applies equally to all Israelis designated for service, and that there is no legal justification for exempting yeshiva students.

According to the ruling, the government’s attempt to distinguish between yeshiva students and others seriously harmed the rule of law and the principle of equality before the law. That harm is all the more serious because of the weight of military conscription—an act taken on in order to defend the state, through which one may undergo bodily harm or even death—or the lack thereof.

The court also rejected the government’s argument that military authorities are able to use discretion when considering which populations to enlist, noting that discriminatory enlistment undermines the obligatory nature of enlistment as a whole.

The Supreme Court also emphasized the specific moment in which the decision was made, arguing that the months-long war with Hamas and Hezbollah and the urgent need for more soldiers makes the burden of unequal military service all the more acute.

“While in the year 1949, numbers of yeshiva students who did not enlist were limited, standing at only about 400 yeshiva students … at the end of June 2023, the number stood at about 63,000 students,” the judges wrote in their opinion. “In this state of affairs, nonenforcement of the regulations of the Israeli Defense Service Law creates harsh discrimination between those required to serve and those for whom procedures are carried out in the name of their enlistment. As was said in another case, ‘Discrimination as to the dearest thing of all—life itself—is the harshest of all discrimination. A person is ready to give his life for the security of his homeland. He doesn’t expect any benefit from it. He just expects that others will behave like him as well.’”

“These days, with the enormity of a difficult war, the burden of inequality has become sharper than ever—and requires the advancement of a sustainable solution for this problem,” the judges continued.

The court noted that no actual legal framework existed for the exemption of yeshiva students from military service, and set a deadline of April 1, 2024 as the last date for government funding of yeshivas whose students are not serving in the military. That date was chosen as a compromise taking into account both the potential harm to the yeshivas and the severity of the legal matter.

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