Haredi Enlistment According to the Supreme Court Justices: "We intend to decide"

The discussion in the Supreme Court yesterday was not about whether a law exempting yeshiva students harms the principle of equality. It was about a much more basic question: is the State of Israel acting in accordance with the principle of the rule of law—that is, can yeshiva students be exempted from enlisting in the IDF, when there is no law allowing for this.

Photo by Amit Shabi/POOL

Perhaps the most important message from Israel's hearing in the High Court of Justice (HCJ) on Haredi conscription is hidden in a short sentence by Supreme Court President Justice Fogelman: "We intend to decide on the fundamental questions...and not turn these petitions into rolling petitions." The HCJ justices will probably not give an (additional) extension this time and will not wait for Knesset to legislate some exemption law or another. The two central questions in the discussion will probably receive a sharp and clear answer – and soon.

The first question is whether Haredi yeshiva students must be drafted into the IDF - "now."

Following the expiration of the law allowing for deferral of enlistment for yeshiva students, the Prime Minister recently informed the Supreme Court that he wishes to advance a bill that passed first reading in the previous government over two years ago. This proposal completely ignores the dramatic change in Israel's security situation since October 7, does not address the needs of the defense establishment, with recruitment targets almost unthinkably low, and proposes economic penalties for draft dodgers that are toothless. The hidden message behind this request is likely a request for the justices to wait just a little longer, signaling that they should not hand down a ruling requiring the recruitment of yeshiva students—because by the end of the summer session, there will be a new law granting them exemption.

The discussion by the composition of 9 justices at the HCJ focused on the question of what the legal situation is now, that is, where there is no legal framework for the exemption of yeshiva students from IDF enlistment. According to the Attorney General, from the moment the previous legal framework expired, it is possible and necessary to immediately draft about 3,000 yeshiva students. Her position is that the number 3,000 is immediate, initial number, and the minimum number for the 2024 recruitment cycle.

Why only 3,000?

The government was represented at the hearing by a private lawyer, Adv. Taubman, with the approval of the Attorney General. In the government's opinion, contrary to the position of the Attorney General, in the interim period until the enactment of a new exemption law, it is both possible to continue the status quo of not recruiting yeshiva students and to continue funding the yeshivas where the draft dodgers study.

Attorney Taubman claimed that today, the one who decides who to recruit is the commanding officer on behalf of the military - an officer with the rank of lieutenant colonel, and the government does not have the right to interfere in his judgment. In other words, the government claims that it now depends on the commander and there is no place for the High Court to compel the commander to draft yeshiva students.

The justices made it difficult for him. They repeatedly tried to extract from the government representative a statement according to which the government agrees to the recruitment of 3,000 yeshiva students. But even after repeated questions from the justices and many twists and turns, Attorney Taubman was unable to agree to this on behalf of the government.

Justice Amit asks: "And if the commander is the one to decide upon recruitment and the commander decides to recruit 10,000 yeshiva students - is that fine in your opinion?" "If he decides to enlist 250,000," answered Attorney Taubman "the government will not interfere."

I'm not sure the justices were convinced. Evidently it was difficult for them to accept the government's position that there is some kind of "omnipotent commander" in Israel that determines whether or not to mobilize population groups in a sweeping manner. Chief Justice Fogelman said that the main, unescapable argument is that the government actually wants to stall until there is a new legislation.

Towards the end of the hearing, Justice Fogelman made it clear, lest there be any doubt, that "the existence of legislative procedures is not a reason for postponing recruitment."

It was actually evident that, for the justices,  even the enlistment of 3,000 yeshiva students is not satisfactory. "Why, when we are in the dire straits, are we to settle for 3,000?" - Justice Solberg asks - "I was very disappointed to see the number 3,000. What's the problem, when they had already recruited 2,000 in the past and even close to 3,000... I wish [this number to] triple or quadruple."

The justices also addressed the question to Attorney Milikovsky from the Attorney General's Office. "Why exactly are you proposing to recruit only 3,000, when there are in fact about 63,000 Yeshiva members who must be drafted?" The Attorney General's Office clarified that this is the initial position of the military for the current stage. This number would be added to those who are already enlisting (about 1,800). "This is a number that does not yet reflect the principle of equality [in the burden of service], in light of the needs of the army and the principle of equality," says Attorney Milikovsky. And Justice Solberg answers that "this is about more than the principle of equality—the [IDF] chief of staff is talking about an existential need."

As for the government's attempt to place the sole discretion on the commander, the attorney's office representative claimed that this is contrary to the law and contrary to the ruling: Attorney Milikovky said that: "The thesis according to which the question of what to do with 63,000 draft dodgers should be determined by an officer with the rank of lieutenant colonel - this thesis that does not hold water... the army will act according to the guidance of the political echelon."

From the discussion it appears that, apparently, all the judges of the panel are of the opinion that the legal situation today does not allow an exemption from conscription for yeshiva students, and regarding their immediate conscription – 3,000 will probably be the magic number, despite the panel's reference to the existence of approximately 63,000 yeshiva members who must be enlisted.

Follow the Money: Yeshiva Funding

The second question in the hearing dealt with the continued state funding of Haredi yeshivas and learning institutions. As a reminder, in the opinion of the Attorney General, there is a connection between the recruitment arrangement and the financial support for yeshiva students. Therefore, since there is currently no law that regulates the exemption from recruitment - there is no legal basis for continuing the transfer of funds for yeshiva students who are required to enlist in the IDF.

The interim order issued by the High Court of Justice stated that as of April 1, 2024, there is no longer any authority to transfer funds to support such religious institutions. The justices who issued the order, Chief Justice Fogelman, and Justices Amit and Solberg, made clear that they did not see fit to allow even short term transitional funding, given that such funding is illegal as of April 1.

In today's hearing, other positions were also heard. Justice Stein, for example, wondered whether an extension might not be appropriate here in order to align with precedent, in accordance with the High Court's decision in the past that allowed for an extension in the event of a cessation of funding. Chief Justice Fogelman said, "Then the funding was in line with the law and now the funding is against the law." Judge Amit added, "We believed that it is impossible to extend something that is illegal." But Judge Stein continues with his argument: "Wouldn't it be correct to consider that these funds provide for basic needs and that there are mouths to feed here?

We emphasize that the debate here is about an adjustment period, not about the actual legality of transferring the funds.

The representative of the government, attorney Taubman, claimed that as long as the IDF does not recruit yeshiva students, they can continue to be supported. It seems that this position is not acceptable to most of the justices. According to them, yeshiva students must do what is required by law, that is, show up, come for assessments of fitness to serve, and report for duty. If the military cannot recruit them, but they themselves have expressed a willingness to enlist – then, in this case, it will likely be possible to continue to fund the yeshiva.

At the end of almost 9 hours of discussion, the justices' position on the two main issues of the case seems quite uniform, falling outside of the framework of the typical "liberal and conservative" camps. We will remind you that this is not a case that discusses the question of whether a law that exempts yeshiva students from enlisting seriously and disproportionately harms the principle of equality. The discussion today is about a much more basic question: is the State of Israel acting in accordance with the principle of the rule of law—that is, can yeshiva students be exempted from enlisting in the IDF, when there is no law allowing for this.

We will find out quite soon.