High Court orders the government to explain why its refusal to draft Haredim is legal
Petitioners claim a 2023 resolution enabling state to temporarily avoid drafting ultra-Orthodox yeshiva students is illegal. State has till March 24 to respond to court
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
The High Court of Justice ordered the government on Monday to explain why it should not annul a government resolution passed in June 2023, which instructed the IDF not to draft ultra-Orthodox yeshiva students for nine months, and, by extension, to explain why the IDF should not begin drafting such men.
The order came following a hearing earlier in the day for petitions against the measure, during which the justices repeatedly challenged the state representative to demonstrate the legality of the resolution. The court’s instructions now place the burden of proof on the government to explain why its resolution should not be annulled, and indicate that it is taking the petitions very seriously.
The High Court also issued an interim order determining that a provision of the law for military service, which provides an individual with a service exemption if they are not drafted within two years of turning 18, shall not apply to yeshiva students who have not been drafted because of the government’s resolution — a further indication that the court believes the petitions to have merit.
The state must respond to the orders by March 24.
Earlier on Monday, High Court justices expressed considerable skepticism over the legality of the government resolution which was approved to stop the IDF from drafting ultra-Orthodox yeshiva students while the Knesset formulates and passes new legislation on the highly combustible issue.
The court was considering petitions challenging the legality of a cabinet resolution from June 25, 2023 in which the government instructed the IDF conscription authorities that “no procedures will be taken for the recruitment of yeshiva students” until March 31, 2024, while it finds a way to comply with a court ruling from 2017 that determined blanket military service exemptions for ultra-Orthodox yeshiva students to be discriminatory and illegal.
Outside the court, hundreds of demonstrators marched to Agranat Sqaure demanding equality in the military draft and holding banners with slogans such as “Together we’ll win??” and “Equal service for all,” after having first protested outside the home of senior ultra-Orthodox politician Housing and Construction Minister Yitzhak Goldknopf.
At the same time, petitioners inside the court chambers fumed that the resolution directly contradicted the existing law of military service and would therefore be illegal, while pointing to the fact that nothing has changed in the 25 years since the court first addressed the issue.
The State Attorney’s Office representative defending the government argued, however, that the cabinet resolution was lawful since it did not actively change the legal situation, but merely instructed state agencies not to enforce the current one.
The government passed its resolution on June 25, 2023, five days before the law allowing for blanket military service exemptions — technically annual deferrals until the age of exemption — for Haredi yeshiva students was set to expire.
The government argued at the time that it needed this extra time to draft new legislation for an “arrangement” for yeshiva students, but now says that it was unable to do so following the outbreak of war on October 7.
The law granting blanket exemptions was struck down by the court in 2017 as a discriminatory measure that violated the principle of equality before the law, and the government was instructed to pass a new law that would lead to greater ultra-Orthodox enlistment.
The IDF’s Personnel Directorate told a Knesset committee last week that some 66,000 young men from the ultra-Orthodox community received a deferral from military service over the past year, reportedly an all-time record. Some 540 of them decided to enlist since the war started, the IDF said.
The state last week told the court that it needed more time to legislate such a law because it been impossible to do so during the ongoing war, said it would outline what the draft law would include by March 24, and then asked to be given an extension until the end of June to pass the legislation.
The Movement for Quality Government in Israel, which has campaigned for decades for ultra-Orthodox enlistment, filed petitions to the court in August against the cabinet resolution, arguing that it violated the rule of law and was “unreasonable in the extreme,” among other arguments.
Speaking first in court, attorney Eliad Shraga — who heads the Movement for Quality Government — denounced the government and strongly criticized the court for having failed to bring about the end of blanket exemptions for ultra-Orthodox yeshiva students from military service over the last quarter century.
“We are going nowhere. We are in the same closed circle for 25 years. We’ve been in this same place and said we cannot continue to discriminate between blood and blood, to discriminate between civilians,” Shraga told the court.
“It’s been 25 years of endless postponements, 25 years in which the court has become a partner in this, and gives repeated postponements to the state.
“At a time when there is bereavement hanging over so many homes, when so many have people injured, this discrimination cries out to the heavens. We cannot continue to plaster over this, especially at a time when the IDF is calling out for manpower,” he added.
In seeking to direct Shraga onto a line of argument which actually addressed the petition before the court, both acting Supreme Court President Uzi Vogelman and Justice Noam Sohlberg pointed out to him that the core issue at hand was that of the High Court’s 1998 “Rubenstein” ruling which determined that the government was not entitled to make such weighty decisions on the basis of executive action, such as a cabinet resolution, and that such arrangements can only be determined by the Knesset.
Taking a more direct approach than Shraga, attorney Daphne Holtz Lechner representing the Mothers at the Front organization accused the government of seeking to illegitimately circumvent the law.
“The government couldn’t ask for another extension so it did a workaround. It said… we’ll decide for ourselves, it took the law into its own hands,” said Holtz Lechner.
“But it contradicts a Knesset law, so there is no authority to arrange it [the order not to enforce ultra-Orthodox conscription] in a government resolution.”
In response to these and other oral arguments, Avi Milikovsky of the State Attorney’s Office representing the government attempted to frame the resolution as a measure designed not to actively continue military service exemptions for ultra-Orthodox yeshiva students, but to simply allow the state not to enforce it while it works out a new arrangement.
“The only thing the government’s resolution does is a policy decision for the recruiting authorities,” he argued, explaining that the government resolution was just a stop-gap measure in the first year after the previous law expired.
Neither Vogelman nor Sohlberg was especially impressed by this line of reasoning, with Vogelman inquiring of Milikovsky: “Isn’t this de facto service deferrals?”
Milikovsky continued on, arguing that the IDF authorities do not conscript all military aged men in one go, but do so gradually over the course of a 12-month conscription calendar and could therefore wait several more months while a new legislative arrangement is passed before drafting ultra-Orthodox yeshiva students.
“When the law expired, it was clear the conscription authorities couldn’t draft 63,000 people [the estimated number of ultra-Orthodox yeshiva students who are currently of military age],” said the attorney.
Vogelman objected again, saying that not all 63,000 would need to be drafted immediately.
“So let them draft 1,000 to start with,” said the court’s acting president.
Sohlberg was equally unreceptive.
“How is it possible to extend military service deferrals by the power of a law that has expired?” he demanded.
The court will now consider the petitioners’ request for interim orders against the government demanding it explain why it should not annul the cabinet resolution, which would then require a further hearing possibly in front of an enlarged panel of judges.
Before the hearing got underway, a crowd led by the Brothers in Arms protest movement arrived outside of Goldknopf’s Jerusalem home and expressed outrage at the ongoing opposition of the ultra-Orthodox leadership to the conscription of men from the community.
“We thought after the worst massacre of Jews since the Holocaust, something would change. We hoped that after this terrible tragedy, out of the loss and pain that is only getting greater every day, we would flourish together,” one Brothers in Arms leader declared, referring to the October 7 onslaught.
“We thought you would understand that we can’t do it alone anymore, that the burden we have carried since the establishment of the state is too heavy.
“We thought this time you would want to be with us, to bear the burden [of military service], to share it. That alongside religious belief and Torah study you would see your suffering brothers and sisters.”
The protesters then moved on to Agranat Square to demand equality in the sharing of the burden of military service, with many holding aloft stretchers symbolizing the Hebrew phrase of “getting under the stretcher” of IDF service.
