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Article Israel: High Court Rules That State Must Draft Yeshiva Students to the Military

On June 25, 2024, the High Court of Justice accepted joint petitions seeking to enforce military draft requirements under the Defense Service Law [Combined Version], 5746-1986 on Ultra Orthodox students at yeshivas and kollels (Jewish Orthodox institutions of learning). It also ruled that in the absence of a legal framework exempting such students from the draft, there was no legal basis for subsidizing these institutions to support such students. (HCJ 6198/23 etc. Movement for Quality Government in Israel v. Minister of Defense, Supreme Court, State of Israel the Judicial Authority.)

Background

The policy of exempting yeshiva students from the draft dates to 1949, when then-Prime Minister and Defense Minister David Ben-Gurion decided to exempt about 400 yeshiva students from military service. The policy was maintained by successive Israeli governments, with the number of exempted yeshiva students steadily increasing, reaching  60,000 by 2021. The exemption aroused intense public controversy and led to multiple litigations over the years. The ongoing war has intensified public resentment against the policy for various reasons, including the government’s recent backing of an extension to Israel Defense Force (IDF) reservists’ service.  

In its 1998 decision in HC 3267/97 Rubinstein v. Ressler, the Court held that the policy for deferring service of yeshiva students must be regulated by primary legislation. In 2002, the Knesset (Israel’s parliament) adopted the Deferment of Military Draft for Yeshiva Students Whose Occupation is the Study of Torah Law, 5762-2002 (known as the Tal Law after Judge Zvi Tal, who headed the committee that proposed the law), which provided a statutory authorization to the Minister of Defense to approve yeshiva students’ draft deferments for a period limited to five years. The constitutionality of the Tal Law was reviewed by the Court multiple times.

In a 2006 decision in HCJ 6427/02 Movement for Quality of Government v. Knesset, the Court held that the law violated the constitutional right to equality, and did not advance the purpose of participation of Ultra Orthodox men in military or civilian service. In a 2012 decision in HCJ 6298/07 Ressler v. Knesset, the Court determined that the deferment arrangement provided under the law contained an inherent defect that could not be remedied and that the law could not be further extended. The law expired in August 2012.

The Court struck down an additional amendment which allowed further extension of the exemption policy in a 2017 decision in HCJ 1877/14 Movement for Quality Government v. Knesset. To allow time for the government to prepare for the consequences of its cancellation, the Court made the effective date one year after the decision. The judgment, however, never became operative because of repeated requests by the state to allow the Knesset to complete alternative legislation. The law expired on June 30, 2023, before any alternative legislation was passed. (HCJ 6198/23 para. 8.)

Five days prior to the expiration of the law, the government passed Resolution 682: Service in the Israel Defense Forces and Appreciation of Those Who Serve. Section 3 of the resolution instructed the military not to enforce the provisions of the law on yeshiva students, with effect until March 31, 2024. Resolution 682 expired on April 1.

Decision

The court, sitting with an extended bench of nine justices, ruled that there was no legal basis for the government to refrain from recruiting yeshiva students and that section 3 of Resolution 682 was issued without a legal basis. It determined that section 3’s requirement to sweepingly refrain, without any reservation or discretion, from recruiting all yeshiva students constituted an improper selective enforcement, and inflicted serious harm to the rule of law and the principle that all individuals are equal before the law. (HCJ 6198/23 paras. 44 & 53.)

As provisions of the Defense Service Law regarding deferment and exemption expired on June 30, 2023, there was no longer any legislative arrangement that made it possible to distinguish between yeshiva students and others intended for military service. Because the Rubinstein v. Ressler decision established that primary legislation is necessary to regulate deferral of yeshiva students from the draft, the court ruled that “none of the officials in the executive branch had the authority to order the sweeping refrain from recruitment of all yeshiva students and the state, and accordingly, must act to recruit them in accordance with the provisions of the law.” (Para. 61.)

The Court further determined that there was a direct link between governmental subsidies for yeshivas and military recruitment arrangements that delayed and exempted their students from service. In the absence of a legal basis for deferral or exemption from the draft, the basis for distribution of subsidies no longer existed. (Paras. 69 & 79.)

Ruth Levush, Law Library of Congress
July 3, 2024

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Chicago citation style:

Levush, Ruth. Israel: High Court Rules That State Must Draft Yeshiva Students to the Military. 2024. Web Page. https://www.loc.gov/item/global-legal-monitor/2024-07-02/israel-high-court-rules-that-state-must-draft-yeshiva-students-to-the-military/.

APA citation style:

Levush, R. (2024) Israel: High Court Rules That State Must Draft Yeshiva Students to the Military. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2024-07-02/israel-high-court-rules-that-state-must-draft-yeshiva-students-to-the-military/.

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Levush, Ruth. Israel: High Court Rules That State Must Draft Yeshiva Students to the Military. 2024. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2024-07-02/israel-high-court-rules-that-state-must-draft-yeshiva-students-to-the-military/>.