What’s happened: In a landmark decision, Israel’s High Court of Justice ruled yesterday that the state must draft all Ultra-orthodox men of conscription age into the IDF.
- The case before the court concerned whether the government’s ad hoc instruction to the IDF not to draft ultra-Orthodox men, made last year after temporary legislation ensuring the exemption expired, was legal or illegal.
- The court ruled unanimously that it was illegal, and that conscription should apply regardless of whether men are fulltime yeshiva students, and that the state is prohibited from providing funding either to those trying to evade the draft, or to the seminaries in which they study.
- Acting Court President Uzi Vogelman said in the decision that, “the State does not have the authority to order a blanket avoidance of drafting them; it must act in accordance with the provisions of the Defence Service Law; may no longer transfer funds to support yeshivas and kollels [yeshivas for married students] for students who have not received an exemption or whose military service has not been deferred.”
- Justifying its decision on the grounds of equality of national burden-sharing, the court said “non-enforcement of the provisions of the Security Service Law creates severe discrimination between those who are required to serve.”
- “In these days, in the midst of a severe war, the burden of inequality is more acute than ever — and requires the promotion of a sustainable solution to this issue.”
Reactions: Ultra-Orthodox politicians reacted to the decision with predictable anger. Minister Meir Porush of United Torah Judaism (UTJ) said, “the High Court of Justice ruling necessarily will lead to two states here. One is the state that is run as is, and another state in which the yeshiva students will continue to study Torah, as they used to do in the state that Ben-Gurion declared.”
- Shas Chairman Aryeh Deri said, “there isn’t any power in the world that can sever the Jewish people from Torah study. Everyone who tried to do that in the past failed miserably.”
- UTJ MK Moshe Gafni lamented the fact that a “ruling [was handed down] by nine justices, including three kippa-wearers, and not one of them commented on the value of Torah study. The Supreme Court has never ruled in favour of the Torah scholars and the Haredi public’s lifestyle.”
- Prime Minister Netanyahu, meanwhile, said “it’s absurd what the High Court, which has refrained for 76 years to use a ruling to enforce the enlistment of yeshiva students, is doing right now – when the government is on the eve of completing a historic enlistment law.”
- Yisrael Beitenu chair Avigdor Lieberman, a long-time proponent of ending the exemption, wrote on X (formerly Twitter): “In a year in which we lost an entire cohort of soldiers who fell in battle or were seriously injured, in a year in which reservists served over 200 days, there is no more justified proof that the IDF needs more personnel. I congratulate the High Court on this decision; it constitutes a significant step in the way to historical change.”
- The Movement for Quality Government in Israel, one of the petitioners to the court, reacted to the judgement by saying “this is a historic victory for the rule of law and the principle of equality in the burden of military service.”
- “We call on the government and the defence minister to implement the decision without delay, to comply with the High Court’s order, and to work immediately to draft yeshiva students.”
Context: The court’s ruling orders the reverse of a decades-long exemption of ultra-Orthodox men from service, and technically provided for the drafting of around 80,000 ultra-Orthodox men of eligible age.
- The political repercussions of the decision could be profound. Netanyahu’s ultra-Orthodox coalition partners made codifying the exemption a central demand of the coalition agreements which saw the government formed in late 2022.
- The prime minister will now work to keep his coalition together, amid fears that that Shas and UTJ may abandon the government, given that their major legislative agenda appears to have been thwarted. Reports this morning suggest that UTJ is considering leaving the coalition while continuing to support it from the outside.
- However, others have suggested that bringing down the government would be a high-risk strategy for the ultra-Orthodox. It is highly unlikely that they would find a government more sympathetic to its causes than this one, and they would run the risk of being left out of a government completely.
- The unanimity of the court in its judgement is significant, in that several of the judges are considered conservative, and several are Orthodox Jews.
- The government may continue to attempt to legislate the issue. and to overrule or circumvent the court. This would have serious implications:
- Firstly, it would return Israel to the constitutional crisis which rocked the country in the months prior to October 7th, as the government looked to enact a programme of judicial “reform” limiting the court’s powers.
- Secondly, any such move would prove hugely divisive with the nation at war on multiple fronts, with the IDF stretched thin, and with high casualty numbers in Gaza.
- Yesterday, in the first reading of the bill, the Knesset narrowly voted to raise the retirement age of army reservists, and exempting a significant (and rapidly growing) sector of the Jewish population from service while raising the retirement age would be unpopular.
- It is possible that any such legislation would fail to gain a Knesset majority in any case, with a number of Likud MKs likely to vote against.
- Likud MK Yuli Edelstein, chair of the Foreign Affairs and Security Committee of the Knesset, which is deliberating the government’s proposed legislation, yesterday said that it would pass “with broad agreement” or not at all. Defence Minister Gallant had rebelled and voted against a draft bill in its first reading.
- The judgement also has implications for the role of Attorney General. AG Gali Baharav-Miara, who has clashed repeatedly with the government over the last 18 months, had refused to represent the government’s position on the issue of exempting the ultra-Orthodox, after which her brief was scaled back. In the judgement, Vogelman also said “we will return to the first principles: The AG is the individual who is authorised to interpret the law vis-à-vis the executive branch. Her interpretations of the law reflect the legal situation. This position has been set in stone by decades of decisions handed down by this court.”
Looking ahead: The court’s judgement allowed for the process of conscription to be gradual. Soon after the judgement, Baharav-Miara and her deputy, Gil Limon issued guidelines to the Defence, Education, and Finance Ministries that an initial drafting of 3,000 current Yeshiva students be implemented.
- They also ordered the government to present plans showing the stages by which additional students will be drafted, according to IDF needs
