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Israel: High Court Strikes Down Draft Exemption for Ultra-Orthodox

(Sept. 25, 2017) On September 12, 2017, Israel’s Supreme Court, sitting as a High Court of Justice with an extended bench, ruled eight to one to strike down amendment numbers 19 and 21 of the Defense Service [Consolidated Version] Law, 5746-1986, which had introduced a new framework for the deferment and exemption of Haredim (ultra-Orthodox Jews) from the compulsory military service that generally applies to all Israeli citizens and permanent residents 18 years old and older.  The main decision was rendered by Court President Miriam Naor. (HCJ 1877/14 Movement for Quality of Government in Israel v. the Knesset (decision rendered on Sept. 12, 2017), STATE OF ISRAEL: THE JUDICIAL AUTHORITY (in Hebrew); Defense Service [Consolidated Version] Law, 5746-1986, SEFER HAHUKIM [OFFICIAL GAZETTE, SH] 5746, No. 1170 p. 107, as amended (the Law); full text of amendments 19 & 21 available at Reshumot (a Ministry of Justice website for all legal publications; including SH), search requires using the relevant Jewish year (תשע”ד & תשע”ו, respectively) and subject שירות בטחון (in Hebrew).)

Background 

The petitioners claimed that by providing for different rules regarding the draft for different populations in Israeli society based on each population’s religious beliefs, the deferral/exemption arrangement for the ultra-Orthodox harmed the constitutional rights to equal treatment and human dignity that are protected under the Basic Law: Human Dignity and Liberty. (Id. ¶¶ 31-35; Basic Law: Human Dignity and Liberty (5752-1992) as amended (unofficial translation), Knesset website (last visited Sept. 18, 2017).)

Naor noted that draft deferment for yeshiva (Orthodox Jewish college or seminary) students was initially based on a 1949 decision of the Minister of Defense and went on to describe, the developments that had taken place since that time. (HCJ 1877/14, ¶¶ 1-9.) She pointed out that the arrangement that was the subject of the petition was issued in response to a 2012 voidance by the Supreme Court of previous legislation on the subject. (Id. ¶ 7, referring to HC 6298/07 Resler v. Knesset (Feb. 21, 2012), STATE OF ISRAEL: THE JUDICIAL AUTHORITY (in Hebrew); for a summary of the 2012 decision and legal developments leading to that decision, see Ruth Levush, Israel: Amendment Law Imposes Military Draft and National Service Obligations on Yeshiva Students, GLOBAL LEGAL MONITOR (Mar. 31, 2014) & Ruth Levush, Israel: Supreme Court Decision Invalidating the Law on Haredi Military Draft Postponement (Mar. 2012), Law Library of Congress website.)

Verdict

One of the main innovations of the current arrangement, according to Naor, was the adoption of a “collective model of military service deferment” for all yeshiva students as determined by the government, in lieu of the former individual case-by-case model. The arrangement provided for two separate “adjustment” periods.  In the first period (March 20, 2014 to June 30, 2020), the Minister of Defense could defer and even exempt older students, irrespective of the draft quotas that had been determined by the government.  (HCJ 1877/14, ¶¶ 12-19.)  In the second period (July 1, 2020 to June 30, 2023), the Minister was authorized to annually defer the service of yeshiva students until they reached the age of 21, after which further deferments could be allowed until the age of 26 if the general military draft quota established by the government was met.  Full exemption could then be granted by the Minister, irrespective of whether the quota was met.  The legislature has not made any determination for the period commencing after the expiration of the second period.  (Id. ¶¶ 20-23.)

Among the arrangement’s “inherent faults,” according to Naor, is the fact that it remained completely voluntary in the first period and, for many of the yeshiva students, also for the second period, which gave the Minister the discretion to exempt them irrespective of whether draft quotas were met. The “most severe failure” of the arrangement, Naor opined, was its temporary nature and the fact that it did not define any permanent objectives, including eliminating inequality in the application of the military draft and “bringing about a real social change.”  (Id. ¶ 97.)

Instead, “the arrangement merely left the existing situation in place” and delayed “dealing with the complex and explosive challenge” that has divided Israeli society for dozens of years, namely, the unequal application of the draft. Under these circumstances, Naor concluded, the arrangement introduced by the amendments “was not proportional” in that it exceeded the necessary measures for achieving its objectives, in contravention of article 8 of the Basic Law: Human Dignity and Liberty.  (Id. ¶ 98)

Accepting the petitions, Naor declared the nullity of Chapter C1 of the Defense Service Law, which sets forth the details of the arrangement. The judgment will take effect one year from its rendering, to allow military authorities time to prepare, and the Knesset to deliberate on, a legislative solution on the draft of yeshiva students.  (Id. ¶ 107.)