Expiration of haredi draft deferments hurtles Israel into brave new world - analysis

Ultra-Orthodox men aged 18 to 26  who – as of April 1 – do not go into the army can be considered draft dodgers.Why? Because there is no legal framework – no defense minister order or state law – enabling deferments from IDF service for full-time yeshiva study. As of April 1, some 66,000 haredim from the age of 18-26 can – at least technically – be drafted into the army.

Good luck getting them in.

Regardless of the practicality of drafting all those 66,000, or the estimated 12,000-13,000 who have reached army age this year, the absence of any defense minister order or Knesset law that could provide a basis for deferring army service due to yeshiva study – an annual deferment that transitions into a blanket exemption at age 26 – is a significant milestone in Israeli history.

Since the establishment of the state in 1948, there has always been some legal framework in place enabling deferments. Right now, no such framework exists.

Lacking any legal framework facilitating deferments – despite more than 25 years of trying to establish one through Knesset legislation – the High Court of Justice last week ruled that the state can no longer pay the monthly stipends it pays to yeshiva students of army age.

These payments are not made directly to the students, but through the yeshivot where they study. A single student receives NIS 455 a month, and a married student receives NIS 855.

In this year’s budget, the state allocated some NIS 1.7 billion for yeshivot, about one-third of that to pay the stipends of those between 18-26, and the remainder to pay students who are exempt from army duty but are continuing to study until age 35.

The amount the state pays yeshivot each month for stipends for those aged 18-26 with deferments is between NIS 40 million to NIS 50m., bringing the annual allocation to some NIS 540m. to NIS 600m.

The court ordered the state to present an affidavit by the end of April describing steps taken to conscript haredim, and the court is scheduled to sit in a nine-court panel in May for a further hearing on the matter where it is to decide whether to issue an order for the wholesale conscription of haredim.

In the meantime, the government could pass a law regulating haredi conscription that would be upheld by the court, something it has been unable to do for the last quarter-century.

Haredi conscription in the past 

The issue of haredi conscription, however, predates the initial attempts to regulate the matter through legislation that began with the establishment of the Tal Commission in 1999. The issue goes back to the very beginning of the state, and – unlike other major societal issues such as the Ashkenazi-Mizrahi divide – this one continues to bedevil the country and has not worked itself out.

If anything, it has only gotten worse.

The saga over haredi conscription began in 1948 when first prime minister David Ben-Gurion allowed exemptions from IDF service for 400 yeshiva prodigies to rebuild the yeshiva world decimated by the Holocaust.

At the time, there were only some 35,000 to 45,000 haredim in the country, out of a Jewish population of some 720,000 or between 5% to 6.5% of the Jewish population.

The number of exemptions grew to 800 by the end of the 1950s, a number that stayed stable until the political realignment brought about by Menachem Begin and the Likud’s victory in the 1977 election. The haredi Agudat Yisrael joined Begin’s government, a move that heralded increased haredi political influence and led to a dramatic increase in the number of exemptions as Begin removed the cap of 800 deferments.

For example, in 1974, haredim made up 2.4% of conscript-aged males, that number rose to 9.2% in 1999 – the vast majority who preferred deferments – and today stands at some 17%. While in 1948, haredim made up roughly 5% of the country’s Jewish population, today that number stands at nearly 18%.

Tellingly, from 1948 to 2002 there was never a Knesset law enabling these deferments. Rather, the exemptions were signed each year by the defense minister based on a clause in the Israel Defense Service Law giving him authority to issue exemptions or reduce the stint of duty for those to be conscripted.

As the numbers soared and reached nearly 29,000 deferments in 1997 (compared to 66,000 today), this issue became increasingly contentious, and in 1998, then-MK Amnon Rubinstein appealed to the High Court of Justice, headed at the time by activist judge Aharon Barak.

In a landmark ruling, Rubinstein v. Defense Minister, the court ruled that without a Knesset law regulating the issue, the current arrangement could not continue. From that moment onward, the political system has been trying, unsuccessfully, to pass legislation that would anchor the deferments – defining how many, for whom, and in what framework – into law.

THE FIRST shot at it came in 1999 when then-prime minister Ehud Barak set up a commission headed by former Supreme Court judge Tzvi Tal to come up with a formula that would pass the Knesset.

In July 2002, the Tal Law was passed in the Knesset as a five-year temporary law, giving draft deferrals to yeshiva students studying full-time. Trying to encourage haredim to enter the workforce as well, something they could not do while enjoying a draft deferment, the law opened up an avenue whereby at 23 they could either continue yeshiva study, do a year of national service, or shortened IDF service.

No sooner was this law passed than it was challenged, and in May 2006, the court postponed determining the legality of the law and wanted more time to see if the law would correct the inherent inequality in a situation whereby some were obligated for IDF service and others were not. A year later, the law was extended in the Knesset for another five years.

Five years later, in February 2012, the court declared the law unconstitutional and said it did not achieve its aims and was inherently unequal.

Eleven months later, Prime Minister Benjamin Netanyahu won reelection – after coming back to power in 2009 – and formed a government without the haredi parties, leaving many to believe this was a historic chance to pass legislation on this matter.

In March 2014, the Knesset passed a law that would require the IDF to draft a certain percentage of yeshiva students every year, with the goal being 60% by 2017.

In the interim, however, Netanyahu’s government fell and Israel went back to the polls. Netanyahu won again, and this time formed a government with the haredi parties. One of the first things they did was roll back the previous legislation on this matter through amendments to the law that pushed back quotas until 2020 and removed the imposition of criminal penalties for those not enlisting.

Yet another petition was taken to the High Court in 2017, which struck down the 2014 law as perpetuating inequality between haredim and non-haredim and gave the government another year to pass a new law addressing this issue. During this time, the defense minister would be allowed to issue deferrals.

The haredi draft issue was one of the main reasons for the collapse of Netanyahu’s government in 2018, something that led to a spiral of government instability – with Israel going to five elections in less than four years. This instability meant the Knesset could not pass a new law and the courts issued one extension after the next, with the 15th extension set to expire on July 31, 2023.

Days before that extension, Netanyahu’s current government issued a temporary order to Defense Minister Yoav Gallant to refrain from conscripting haredim for nine months, until March 31, 2024.

The idea here was that in the meantime two things would happen: the judicial reform would be well underway that would have prevented the Supreme Court from being able to strike down legislation on this matter – as it did with the Tal Law – and new legislation regulating the matter would be drawn up and passed. The new legislation was to be in the form of a Basic Law, which – the government had banked on – would have been immune from court interference.

Two things happened: the court ruled that it does have the power to strike down Basic Laws and October 7.

Hamas’s attack on October 7 spelled the end of judicial reform, meaning that the haredim would find it difficult to get the type of law they wanted giving wholesale deferments past the High Court of Justice. October 7 also highlighted Israel’s need for a much larger army, which means the country no longer has the luxury to grant deferments to 13,000 able-bodied young men.

Consequently, Israel finds itself – as of April 1 – without a legal framework in place enabling deferment of IDF service for yeshiva students, and with a government unable, because of a court order, to transfer tens of millions of shekels to yeshivot as stipends to students who now legally should be in the army.

Israel has undeniably entered a brave new world.

Stay tuned.