Israeli Conscription laws for Ultra-Orthodox Jews

Two demonstrations took place last month, one in Jerusalem, and the other in New York’s financial district. Both were organized and attended by haredi (ultra-orthodox Jews; literally means “those who fear [God]”) who protested against the adoption of new legislation by the Knesset (Israel’s parliament). The legislation imposed conscription requirements on haredi yeshiva students in Israel. A yeshiva is a Jewish seminary for men chiefly devoted to the study of rabbinic literature and the Talmud. Estimates of the number of demonstrators ranged from hundreds of thousands in Jerusalem, and tens of thousands in NY.

What was it in the legislation that triggered such anger across the ocean? Why were the haredi Israelis so upset and what caused their US brethren to carry on a demonstration in NY on their behalf? The legislation targeted by the demonstrators was composed of two new laws adopted by the Knesset on March 11, 2014. These laws establish the requirements for the drafting of Israeli haredim (plural of haredi) to either military or to national service. The new laws are: the  Defense Service (Amendment No. 19) Law, 5774-2014 (hereinafter the DSAL) and the National-Civilian Service Law, 5774-2014. The full text of both laws is available at the Knesset website (scroll down to appropriate link).

The significance of the new legislation

Under Israel’s Defense Service Law (Consolidated Version), 5746-1986, as amended (hereinafter the DSL; an up-to-date text is available on the Nevo Legal Database at www.nevo.co.il, by subscription, in Hebrew), every Israeli citizen or permanent resident of qualified age is subject to the military draft. Yeshiva students, however, have traditionally been exempted from implementation of the draft duty following a draft deferment based on a pledge that their sole occupation was the study in yeshivas (See Ruth Levush, Israel: Supreme Court Decision Invalidating the Law on Haredi Military Draft Postponement (Mar. 2012), Law Library of Congress website). The new legislation provides a framework for elimination of the draft deferment and exemption.

The passage of the new legislation complies with the requirements under Prime Minister’s Benjamin Netanyahu’s Likud Yisrael Beiteinu political faction’s coalition agreements with the two other large factions, Yesh Atid  and Habayit Hayehudi. Both agreements were entered on March 15, 2013. These coalition agreements served as a precondition to the formulation of the current Israeli government. Both agreements included an identical supplement titled “the Common Path” relating to citizens’ contributions to national service. For a summary of the pertinent provisions contained in the coalition agreements regarding the attainment of an equitable conscription of Israelis including haredim and Arabs for national service, I invite you to read my report titled “Government Composition and Coalition Agreements: Israel,” on the Law Library of Congress website.

The Legal History of the Draft Deferment

Until August 2002, haredi draft deferment had been based on an arrangement the conditions and scope of which have evolved over time as a result of political considerations. Legislation regulating the draft deferment was adopted by the Knesset for the first time in August 2002. The legislation titled the “Deferment of Military Draft for Yeshiva Students whose Occupation Is the Study of Torah Law, 5762-2002” (Sefer Hahukim No. 5762 p. 521, in Hebrew), became known as the “Tal Law”, after Justice Tal, who chaired a governmental committee on the subject.

The Tal Law was designed to encourage haredi men to enlist in the Israel Defense Forces (IDF) or for national service, while allowing exemptions for those who choose to study Torah full-time instead of serving. The law thus provided a statutory authorization to the Minister of Defense to approve yeshiva students’ draft deferments. It further established the criteria for determination of draft deferment, of civil service, as well as “combined service” (of active military service with yeshiva study). Although the Tal Law initially included a provision requiring its expiration within five years following August 1, 2002, the Knesset has repeatedly extended its implementation for additional periods in accordance with other authorizations in the law.

On February 21, 2012, following multiple petitions against the continued application of the Tal Law, Israel’s Supreme Court in HCJ 6298/07 Resler v. Knesset, in a majority of six justices against three, held that the Tal Law was unconstitutional and could no longer be extended. The Court recognized that there was an indication of an actual increase in the number of yeshiva students joining either the military or other service options under the Tal Law. This increase, however, was insufficient. In fact, the Court found the number of haredim getting deferrals was steadily on the increase. Any further delay in implementation of the general draft, according to the majority opinions, would result in the continued increase in the number of draft dodgers and constitute a violation of the constitutional right to equality, which derives from the right to human dignity under Basic Law: Human Dignity and Liberty.

While recognizing the need for achieving the goal of equitable sharing of national draft or service obligation, the minority opinions called for further extensiton of the Law. According to Justice Eliezer Rivlin, the draft of members of the haredi community in Israel constituted a complex social problem, the solution of which was evolutional (HCJ 6298/07 Resler v. Knesset). Justice Edna Arbel similarly determined that it had been clear all along that bringing about a real social change that would minimize the inequality presented by the haredi draft deferment and exemption would take time and involve a gradual implementation (Id., Justice Arbel’s opinion, ¶4). According to both both justices, considering the positive trend, even if minor, in the participation of haredi in the programs prescribed by the Tal Law, its further extensiton should be authorized subject to an additional judicial review at a later date (Id., ¶21; and Justice Rivlin’s opinion).

Economic Aspects of the Draft Deferment and Exemption

Objections to the draft deferment and exemption grew steadily in Israeli society with the rise in the number of haredi men avoiding the service. As explained above, the pledge made by haredi men regarding their sole occupation as students at yeshivas meant that their non-employment became a precondition to the draft deferment. The direct connection between draft deferment and voluntary unemployment, particularly coupled with state subsidies to the haredi community, has become a focus of public resentment.

In his decision in HCJ 6298/07 Resler v. Knesset, Justice Elyakim Rubinstein, a religious observant (but not haredi) Jew himself, has stated:

Unlike the Jewish haredi community in other countries that has understood that only very selected few can stay under the tent of the Torah [study the Torah as their sole occupation] all their lives, in Israel a whole sector of society has been created … composed of thousands of people who do not belong there, that due to the military draft sit in yeshivas. These people, if served in the IDF and if worked like any other person, while also devoting time to the Torah… would benefit the State, their community and themselves.

(Id., Justice Elyakim Rubinstaein’s decision ¶x; this and additional translation from the Hebrew are mine).

Concerns about the economic impact of unemployment in Israel were also expressed by Dr. Karnit Flug. In her first public speech as a Governor of the Bank of Israel she reportedly warned that “[i]f there are no changes in employment patterns [of haredi men as well as of Arab women], these demographic trends will reduce the annual growth rate by about 1.3%, every year. This is a strategic threat for the Israeli economy and for Israeli society, one that we must not ignore.”

Adequacy of the 2014 New Legislation Regulating the Haredi Draft and National Service

Of course, it is premature to determine whether the new legislation is adequate. Conscription of a large number of haredi men into the IDF will undoubtedly impose numerous challenges on the Israeli society as a whole and on the IDF.

The overwhelming majority of haredi men who would be eligible for the draft would already be married and have children, as is customary in their community, at the time they are drafted. The haredi conscripts to IDF would also require special accommodations as required by their religious customs. While requiring the IDF to apply measures to enable yeshiva students who are conscripted to preserve their lifestyle, the DSAL specifically prohibits harming the status and integration of female soldiers in military service (Id. § 26T E.-F.).

The success of integrating the haredim into the IDF, into national service programs or into the labor market, as ultimately envisioned by the new legislation, will be evaluated in the future not only by the number of yeshiva students who join and improve their families economic conditions. Successful integration would also be judged by its impact on general values of the Israeli society, including that of equal treatment and equal opportunities of women.

Is there a chance that the integration will actually materialize? Yedidia Z. Stern, a law professor and vice president of research at the Israel Democracy Institute, claims that the legislation is “a double failure: From a practical standpoint it is not effective, and from the symbolic aspect, it is offensive and drags us into a dispute between brothers. It’s hard to imagine a worse outcome.”

In his article, “Masquerade,” Prof. Stern argues that the total number of persons required to be either drafted or join national service annually under the DSLA is miniscule as compared with the tens of thousands of yeshiva students ages 18-26 who qualify for the draft (while Prof. Stern had predicted this number to be 5000, the Law has ultimately required only 3,300, see DSLA section 27 O (e)), constituting section 26 (O)(e) of the up-to-date version of the DSL).

Prof. Stern further argues that the authorization granted under the DSLA to the government to set draft goals defeats its objectives. This is because the government “will know how to adjust the objectives to the reality and not the reality to the objectives. And of course, until 2017 a political eternity shall pass. Until then there will be elections and a new coalition [government].”

The Real Reason for the Haredi Mass Demonstrations in Jerusalem and in New York

So if the legislation is clearly very limited in scope, why did it cause such a stir not only in Jerusalem but also in the haredi community in NY?

The reason, according to Prof. Stern, has to do with the criminal penalties imposed by the legislation for non-compliance. Under section 46 of the DSL, non-compliance with obligations under the Law constitutes an offense punishable by two-year imprisonment. The imposition of such a severe criminal penalty, Prof. Stern opines, is viewed by the haredi as a direct attack on the identity of their community in Israel. Even if only on the books, subjecting haredi men to imprisonment, according to Prof. Stern, is the equivalent of “poking fingers in the eyes of the haredi [and] pushes the pragmatic majority which shows seeds of integration, into the arms of the extremists’ minority.” 

Criminal law, he opines, is inadequate in dealing with ideological rift between communities, and lack of enforcement would only harm implementation of the rule of law. He believes that “the haredi understand that the state does not have to fund Torah study without any limit and this is why economic cranes, smart carrots and harsh sticks…” will have more convincing power than any criminal sanctions.

It remains to be seen whether the new legislation will achieve its proclaimed goals, or, as Prof. Stern suggested, instead of addressing the problems associated with the draft deferment and exemption, it will further distance the haredi community from full participation in the Israeli society.