The state must act as quickly as possible to formulate an effective enforcement policy toward draft-evaders from the ultra-Orthodox (haredi) community, the High Court of Justice ruled on Wednesday.
Authored by Deputy Supreme Court President Noam Sohlberg, along with Justices Dafna Barak-Erez, David Mintz, Yael Wilner, and Ofer Grosskopf, the verdict states that the policy must include significant criminal-law enforcement measures, alongside broad complementary steps in the economic-civil sphere.
The petition targeted implementation of a previous HCJ ruling
The court issued an absolute order requiring the state to act diligently and swiftly to initiate real criminal proceedings against haredi draft-evaders.
As a benchmark, the state must reach, as soon as possible, a situation in which the rate of criminal proceedings against haredi draft-evaders is not lower than that of other population groups.
The order requires the government to formulate, within 45 days, an effective policy including complementary enforcement measures, especially economic-civil ones.
The chosen measures must – taken as a whole – reasonably be expected to be effective and produce real change. The government must give substantial weight to the views of relevant professional bodies and cannot avoid considering measures that experts deem highly effective.
Moreover, if the policy allows the creation of bypass funding channels, it cannot be considered effective or compliant with the court’s instructions.
Additionally, the verdict states that, as a rule, benefits tied directly or indirectly to draft-evasion – such as benefits for yeshiva students whose yeshiva attendance indicates draft-evasion – must not continue.
Petition filed against the government a year-and-a-half ago
THE PETITION itself, filed against the government about a year and a half ago, specifically targeted the state’s implementation of a previous High Court ruling on enforcement.
It argued that in the absence of appropriate legislation, the executive branch has no authority to refrain from enforcing punitive legal measures on draft-evaders; the state must enforce the law.
The verdict relies on four premises: first, that the duty of military service applies equally and generally to all, including the haredi sector; second, that the longstanding inequality surrounding haredi conscription has become especially severe since the Israel-Hamas War broke out; third, that recruiting haredim at this time is an urgent security need – partly because, according to IDF assessments, roughly 12,000 soldiers are needed to fill ranks, more than half in combat roles; and fourth, that ensuring equal application of the draft is not solely a military task, but rather a national mission of the highest importance, requiring all relevant state authorities to act within their powers.
Regarding criminal enforcement, the court found that, in practice, the state’s conduct is close to a complete abandonment of enforcing the draft on haredi draft-evaders.
This abandonment violates the duty of state authorities to enforce the law, undermines the draft obligation, empties the law of substance, and constitutes selective enforcement.
When the existing law to settle draft goals for the military expired on June 30, 2023, it threw the country into a situation in which the exemptions of thousands of haredim were no longer regulated.
The government decided at the time not to enforce punitive measures on draft-evaders “as it has the intention of regulating the matter.”
THEN OCTOBER 7 happened, and petitions against this lack of regulation flowed in, requesting that, at the very least, financial incentives be halted; that the draft obligations be equally enforced as required by law – to the eligible 15,000 young men per statistics from 2007 – and that punitive measures be enforced by authorities. This, Sohlberg wrote, is one of the foundations of the decision: “That same painful, glaring inequality that has been at the core of this issue in its previous iterations has only grown more severe since the outbreak of the war.”
The petitioners argued that the government did all this in “a manner that undermines the law without any authority to do so; creating severe discrimination and adopting a policy of selective enforcement; and disregarding the army’s need to expand its manpower in light of the ongoing war and the increased burden placed on reserve soldiers.”
When the first hearing took place, the government argued what it has consistently argued ever since: practically, it was doing everything it could, in coordination with the military, to make incorporation for haredim as smooth as possible.
It argued as well that the way to increase the rates of ultra-Orthodox draftees is by passing legislation that is “accepted by haredi authorities” and implemented in a manner that acquiesces to the community, rather than threatens it.
SOHLBERG’S RESPONSE to this argument was biting: “This position... is extremely difficult to accept. It suggests that under the current legal framework, the government has discretion over whether to act to the best of its ability, within its own judgment, to implement and fulfill the duty of enlistment in an equal manner. This position directly contradicts legal provisions, which established an equal draft obligation... it contradicts the general duty of state authorities to act to enforce the law, it is inconsistent with established case law, and it has been explicitly rejected by this court in the past.”
The issue, the deputy supreme court president explained, is simply not enough enforcement when faced with the practical lack of equality before the law.
The framework that the government must accept and advance must include four essential principles.
First, the chosen measures must be ones that can “reasonably be expected... to be effective as a whole, and bring about real change,” giving substantial weight to professional experts and avoiding any framework that permits “bypass funding channels,” which would “empty [the policy] of substance.”
Second, the policy must apply equally to all declared draft-evaders – not only those from the haredi community.
Third, it must not infringe fundamental rights in a disproportionate manner. And fourth, the state may not continue granting benefits that directly or indirectly incentivize draft-evasion – such as benefits to yeshiva students whose enrollment itself constitutes evasion – clarifying that most contemplated measures concern the cancellation of state-granted benefits, not the violation of vested rights.
Attorney Tomer Naor of the Movement for Quality Government in Israel, one of the petitioners, said, “This is not an ‘activist’ decision, but a decision that is deeply rooted in existing law – and after several years in which the government has been blatantly violating it – years in which the IDF is desperate for combat personnel.
“The same government that has been persecuting the Supreme Court for three years now proves once again why we need a strong and independent court that will ensure that the government acts according to the law,” he said, “and not according to extraneous political considerations that are contrary to the interests of the public it is supposed to serve.”
Another petitioner, NGO Israel Hofsheet (Free Israel), through its executive director Uri Keidar, said that the verdict is “a major victory for the serving public, and we must not allow the government to dilute it. As we argued a year and a half ago, the government must not be allowed to drag out enforcement, nor to ignore its obligation to draft all haredim who are required to serve. We are all Israelis; we all serve."