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Israel: Supreme Court Decision Invalidating the Law on Haredi Military Draft Postponement

(Mar. 16, 2012) On February 21, 2012, an expanded bench of the Supreme Court of Israel ruled by a six-to-three majority that the Knesset (parliament) could not extend the application of the Law on Deferment of the Military Draft for Yeshiva Students Whose Occupation Is the Study of the Torah 5762-2002 (Tal Law) beyond its August 1, 2012, expiration date. (HC 6298/07 Resler v. Knesset (Feb. 21, 2012), Nevo Legal Database (by subscription; in Hebrew).) Military service in Israel begins at age 18.

The Tal Law authorizes the Minister of Defense to defer the military service of any Israeli national or permanent resident upon his request if:

· he studies in a yeshiva on a regular basis at least 45 hours a week (except for holidays as determined by the Minister);

· during the time he spends in the yeshiva he does not engage in any additional occupation if he is over 23 years of age and has enjoyed deferment for more than four years;

· he has declared that he has met the above conditions; and

· the head of the yeshiva in which he studies has affirmed that the applicant has met the first condition stated above and has pledged to inform the Israel Defense Forces of any change in this situation within 30 days. (The Law on Deferment of the Military Draft for Yeshiva Students Whose Occupation Is the Study of the Torah, 5762-2002 (as amended), § 2, 5762 SEFER HAHUKIM [Book of Laws, the official gazette] 521 (2002).)

The Tal Law also allows an additional year of deferment when the above conditions are no longer met. The Law provides Haredi (Jewish ultra-Orthodox) youth with the choices of performing civil service in lieu of military service or carrying out a combined service that involves periods of active military service combined with periods of study in a yeshiva. (Id.)

Writing for the majority opinion, outgoing Court President Dorit Beinish held that by providing for differential treatment of members of the Haredi community as compared with all other Israeli nationals and residents who are subject to the military draft, the Tal Law violated the right to equality, which is derived from the right to human dignity under Israel's Basic Law: Human Dignity and Liberty. (Basic Law: Human Dignity and Liberty [in Hebrew], the Knesset website.) Beinish further determined that the Tal Law had not realized the goals on which it was based. These goals included increasing equal sharing of the burden of military service and participation of the Haredi community in the workforce, as well as furthering the careful and gradual process of addressing the draft postponement phenomenon in a way that would be based on broad public consent without coercion. (HC 6298/07 Resler v. Knesset, supra.)

Having examined comprehensive data on the implementation of different options offered by the Tal Law (draft postponement, civil service, and combined service), Beinish recognized that, although there had been a slight increase in the number of Haredi who served in the military or in civil service, their number was insignificant relative to the number of Haredi who enjoyed the deferment. (Id.)

The Tal Law is inherently flawed, she wrote, in that it grants an automatic four-year deferment between the ages of 18 and 22 plus the additional year of deferment after the initial conditions of deferment no longer apply. By that time, she held, most Haredi men are already married and have children to support. Additionally, Benish determined that the wide discretion and the lack of any incentive on the part of the Haredi to be drafted under the Law makes the goal of a gradual shift in the Haredi contribution to the military and to the workforce unattainable. As a result, according to Beinish, “lack of action thereby transforms the Law into a dead letter.” (Id.)

Beinish concluded that the Tal Law violates the Basic Law: Human Dignity and Liberty. Its application, therefore, could not be extended beyond its August 1, 2012, expiration date. She suggested that the Knesset should reach a new arrangement that would rely on the framework of the Tal Law but add mandatory draft or service requirements to address the Law's shortcomings. (Id.)