"Despair” wrote justice Elyakim Rubinstein at the beginning of his written opinion striking down the government’s 2015 law that perpetuated the unlimited exemptions given to haredi yeshiva students from military service.
His one-word sentence is perhaps the most fitting summation for one of the most interminable and intractable problems facing Israeli society, a problem that has totally defeated the political and democratic system.
To briefly recap the recent history of efforts to draft haredi men into the army, in 2012 the High Court of Justice struck down the 2002 arrangement known as the Tal Law on the grounds that the mass exemptions available under it harmed the value of equality and that sufficient progress in increasing haredi conscription was not being made.
The previous government, which included no haredi parties, then passed a law, led by Yesh Atid, which required a majority of haredi men to serve and provided for a small number of exemptions for elite yeshiva students, but delayed full implementation till 2017.
Before that could happen, the government fell, and the new government, this time including the haredi parties, passed an amendment delaying implementation until 2020, and essentially gutted the law of all meaning by giving the defense minister the right to issue as many exemptions as he desires after that date based on no criteria whatsoever.The High Court this week ruled
that this amendment made a mockery of the notion of equality before the law, noting in addition that it had not demanded full equality at this time but rather a legal situation designed to work toward equality.Military Police arresting draft-dodger attacked by haredi rioters in Ashdod
The facts as presented to the court demonstrate that while progress has been made in encouraging more haredi men to do either military or civilian service, that progress is nevertheless slow and perhaps even stuck at approximately 30% of each annual cohort of haredi men reaching the age of 18.
The exact percentage has fluctuated slightly between 2013 and 2016, but also ignores the concern noted by the justices that approximately a third of those conscripted men defined as haredi may no longer actually be part of the haredi community.
Writing that such progress is insufficient to justify the damage done to the principle of equality, the court ruled that the government’s 2015 amendment therefore violated the Basic Law of Human Dignity and Liberty.
At the heart of this conundrum is a deep cultural conflict within Israeli society.
On the one hand is the state’s legal obligation to treat all its citizens equitably before the law. On the other is the haredi community and its leadership which sees Torah study as the apogee of human achievement and refuses to allow those immersed in it to be disturbed in any way from this enterprise if they wish to remain in their yeshiva study halls.
And this is coupled with the haredi leadership’s deep fear that its sons would lose their haredi identity should they enlist in the melting pot of the IDF.
The inordinate power enjoyed by minority political parties in Israel’s electoral system has meant that the haredi political representatives have, time and again, succeeded in thwarting the will of the majority and the legal requirement for equality over this issue.
The question is whether this impasse can actually be resolved, and if so, how?
Let us look at what could and perhaps should be the solution, assuming the continuation of the conscript army model.
The law passed by the last government at the behest of Yesh Atid was always destined to fail, because it ignored the cultural sensitivities and combustible nature of haredi concerns over the value of Torah study and the fear of loss of identity.
Once the high targets for 2017 were missed, all haredi men would have been obligated to serve or face imprisonment. There would have been no way to jail tens of thousands of haredi men, nor would such mass arrests have been desirable; they would simply have led to the contempt of the law on a massive and unprecedented scale.
Instead, what several notable experts advised Yesh Atid and the government at the time was to apply financial pressure to the haredi community through financial sanctions on yeshivot and educational institutions, should conscription targets not be met.
This financial pressure might even have been extended to individuals, with limits imposed on various state benefits for anyone refusing to perform military or civilian service.
Along with provisions to allow haredi men to serve in separate haredi units and to postpone conscription till 21 or 22, which were included in Yesh Atid’s law, such financial stipulations would reduce the coercive nature of any haredi conscription law and would be less antagonistic to the haredi leadership. But they would also constitute a sufficiently powerful negative incentive to boost haredi conscription, which might at the same time satisfy the High Court that the state is truly seeking to redress the lack of equality inherent in the mass exemptions available to haredi men from military service.
Sadly, such a solution was ignored by Yesh Atid in 2013 and 2014, when the law was debated and passed, and is unlikely to be adopted in the current political atmosphere in which all the major political parties, excepting Yesh Atid, are more interested in currying favor with the haredi parties than insisting they make concessions on this issue.
In response to the High Court ruling, Labor Party leader Avi Gabbay almost disavowed the model of a conscription army when he said this week that instead of forcing people into the army, soldiers should instead be paid the minimum wage as an incentive to enlist.
Meanwhile, Bayit Yehudi leader Naftali Bennett and Kulanu chairman Moshe Kahlon have yet to say anything at all on the issue, indicating the degree to which they are interested in healing this open wound in Israeli society.
And Prime Minister Benjamin Netanyahu is in such a precarious position, owing to the serious criminal investigations against him, that he lacks the political leverage to cajole United Torah Judaism and Shas into concessions, should he even have the will to do so, which he has shown in the past he lacks.
What is most likely to occur therefore is simply a repeat of the recent cycle in which the government, at the bidding of Ya’acov Litzman, Moshe Gafni and Arye Deri, will concoct an amendment purporting to encourage haredi enlistment but which nevertheless fails the test of equality.
It will be immediately challenged in court and struck down a couple of years later as incompatible with the principle of equality before the law, and thus the cycle will begin anew, albeit when haredi political power has increased once again, due to the natural increase of the haredi population and the greater number of Knesset seats it will enjoy as a result.
As Rubinstein noted, it’s enough to make you despair.