Fresh proposal to exempt Haredim from IDF draft would likely be struck down by court

Expert says government knows planned law would be discriminatory, has no intention of pushing more ultra-Orthodox men to serve in the military

Emanuel Fabian

Emanuel (Mannie) Fabian is The Times of Israel's military correspondent

Illustrative: Ultra-Orthodox Jews walk outside the army recruitment office in Jerusalem, December 5, 2019. (Olivier Fitoussi/Flash90)
Illustrative: Ultra-Orthodox Jews walk outside the army recruitment office in Jerusalem, December 5, 2019. (Olivier Fitoussi/Flash90)

The latest proposal by politicians to enable ultra-Orthodox Israeli men an earlier exemption from military service is likely to be struck down by Israel’s top court for being discriminatory, according to an expert in the matter.

For decades, ultra-Orthodox men have been allowed a near-blanket exemption from national service in favor of religious study (though small percentages do enlist), but in 2012, the High Court of Justice struck down the law permitting this arrangement as discriminatory. A new law was drafted to address the issue in 2014, but that too was overturned by the court three years later, with the justices demanding that the government pass fresh legislation on the matter, or else Haredi Israelis would be forced to enlist.

Since then, the government — through the defense minister — has been requesting and receiving extensions from the court, as the government failed to draft and pass legislation that would both pass muster with Prime Minister Benjamin Netanyahu’s Haredi coalition partners and also not fall afoul of the country’s discrimination laws. The current and 15th extension is scheduled to expire on July 31, 2023.

The issue of Haredi enlistment in the military has emerged as a third rail in Israeli politics. Governments have fallen and new ones have failed to be formed because of it. Fresh protests break out by more extreme elements of Haredi society each time the matter progresses or when an ultra-Orthodox man who refuses to even request an exemption gets arrested for failing to enlist.

The latest proposal being discussed by Netanyahu and some coalition partners would lower the age of final exemption from the army from the current 26 to 23 or 21. While soldiers are generally drafted from age 18, many yeshiva students are thought to remain in religious study programs longer than they normally would in order to dodge the draft by claiming academic deferments until they reach the age of final exemption. By lowering the permanent exemption age, the government hopes to spur those Haredi men to leave the yeshiva and enter the workforce at a younger age.

In the past, similar proposals to lower the age of exemption have been fiercely opposed by ultra-Orthodox lawmakers who claim it is a ploy to draw Haredim out of Torah studies and the Haredi way of life.

The Israel Defense Forces has indicated that it did not have an issue with the current outline, if the age is set at 23.

Illustrative: Israeli soldiers of the Netzah Yehuda battalion are seen studying at the Peles Military Base, in the Northern Jordan Valley. (Yaakov Naumi/Flash90)

The new proposal does not aim to push more Haredim to enlist, according to Gilad Malach, the head of the Israel Democracy Institute’s Ultra-Orthodox in Israel Program, and the IDF appears to be aware of this. Only between 1,000 and 1,200 Haredim are drafted to the IDF each year, out of around 11,000 ultra-Orthodox males who turn 18 each year. A previous bill aimed to set minimum yearly targets for ultra-Orthodox conscription that, if not met, would trigger financial sanctions on the yeshivas where the students study.

Defense Minister Yoav Gallant has been reported to support setting the age of exemption at 23, but on condition that another bill is passed that would give additional benefits to soldiers and veterans: as well as giving combat soldiers and other essential roles a significant pay raise while soldiers in non-essential positions would serve less time. It was unclear where the budget for these initiatives would come from.

“The new change in this law is not the lowering of the exemption age; the change is that they are trying to pass a law that does not include goals and does not include penalties in case of failure to meet the goals,” Malach told The Times of Israel, noting that the High Court had previously struck down similar laws for this reason.

“With eyes wide open, they are going for legislation that will obviously be rejected by the High Court,” he said.

Malach said the government would try to argue that because the plan includes a pay raise for soldiers and shortening service for non-essential roles, it would be acceptable. “But there is no doubt that such an argument will not be accepted in the court,” he said.

“It’s like saying there is a group that must enlist and they are given a million shekels and there is a group that does not have to enlist and they are given nothing. If you impose [the draft] on one group and another group, you are not even encouraging, it is an unequal law and therefore will not pass,” Malach said.

He said that to reach full equality, the Haredi population would all be forced to draft, “but this is impossible.”

Ultra-Orthodox Jews clash with police as they protest against the arrest of ultra-Orthodox Jewish men who failed to comply with their army draft, in Bnei Brak, December 27, 2020. (Noam Revkin Fenton/Flash90)

Previous governments “tried to create a situation where more and more ultra-Orthodox are enlisted” by setting goals for the military and penalties on yeshivas, while “the current proposal does not have these things,” he added.

According to Channel 12 news, ultra-Orthodox parties told Netanyahu that according to coalition agreements, a new draft law must be advanced at the same time as the approval of the state budget, which is expected to happen next month. The report said the new draft proposal would allow the government, not the Knesset, to determine the conscription quotas for Haredim.

Malach said that according to research he has led, the Haredi males who do enlist are those “who are not as invested in learning Torah,” and without setting quotas to encourage more to draft, nothing will change.

“Those 1,000 who enlist do not enlist because of the exemption age. These are people who want to enlist,” he said.

Yossi Levy, the CEO of the Netzah Yehuda Association, which helps Haredi soldiers in the IDF, said the government was not doing enough to encourage more ultra-Orthodox men to draft.

“In the next decade, we all know there won’t be a robot army. The IDF requires Haredim, both in combat and technological units,” Levy told The Times of Israel.

He said that not requiring more ultra-Orthodox men to draft, while simultaneously forcing other religious Jews and secular Jews to enlist, only “deepens societal gaps.”

“There has been no government plan to incorporate Haredim in the IDF. What we should be seeing is a benefits program for Haredi soldiers. There needs to be affirmative action at this stage to encourage more Haredim to draft. Currently, the IDF doesn’t have the budget to incorporate Haredim or to properly compensate them,” Levy claimed.

Ultra-Orthodox Jews protest outside the army draft office in Jerusalem on December 13, 2018. (Yonatan Sindel/ Flash90/File)

On Sunday afternoon, the Likud party in a statement said that, “as of now, there is no agreement on a Draft Law.” Though Haredi lawmakers were not present during a recent discussion on the law, it seemed likely that they would support the latest proposal.

“The current proposal, because of the political power of the ultra-Orthodox, simply tries to give them what they want,” Malach said. “It comes and says that those who want to enlist are allowed, and those who study Torah are exempt.”

Still, despite the expected ruling of the High Court against the proposal — should it be passed as a law — Malach said the government may try to pass it in other ways, such as via the planned override clause, which would allow lawmakers to re-legislate bills that the High Court has deemed illegal.

Judah Ari Gross contributed to this report.

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