The long-running courtroom drama about the (non) conscription of yeshiva students has broken every possible record. The High Court of Justice has deliberated on the issue nine times over the course of four decades. The constitutionality of the legislation dealing with the matter has been weighed four times. Twice, most recently on September 12, the Court has struck down a law passed by the Knesset. There has never been anything like it.
The justices pulled no punches when they condemned the current law: “A statutory masked ball”; “a sort of deception”; “an embarrassing fiction”; “fig leaves to conceal … naked discrimination.” It is hard to avoid the feeling that the judicial branch has finally had enough, after repeatedly running up against the solid wall erected by Israeli political realities.
Heartrending and symbolic, the first word in the decision written by Justice Elyakim Rubinstein: “Despair.” Designated Chief Justice Esther Hayut confessed that she had never imagined that, at the end of such an exhausting legal journey “our feet would be standing in the same place and perhaps even lower, without yet having found … at least a marked and paved path that could lead to an appropriate and constitutional solution, as required.” Indeed, the debate about conscription is the greatest threat to the covenant of destiny among the Jews in Israel.
The ultra-Orthodox are afraid that the sudden transition of eighteen-year-olds from the sheltered yeshiva environment to the military, which holds extensive practical and symbolic power over its young conscripts, will erode the ultra-Orthodox identity of the next generation. Most of the ultra-Orthodox are not opposed to the state or to the armed forces; they understand that not every young man in their society is interested in or capable of learning Torah as a lifetime vocation; and they know that it is impossible to preserve ultra-Orthodox society in abject poverty indefinitely. Furthermore, they are none too pleased with their enduring image as parasites. However, they are also afraid of the loss of their identity, which is why they have geared up for an uncompromising battle.
On the other side, the public at large has had its fill of discrimination between Jew and Jew. A historical perspective reveals the depth and width of the opposition to the current arrangements—on the right (Tsomet, Yisrael Beiteinu), on the left (Labor under Barak, Meretz), and in the center (Shinui, Yesh Atid). Indeed, two previous governments collapsed because of the demand for “equality now!”
The two contrary trajectories, both of them authentic and powerful, are a ticking time bomb on the national table. The High Court cannot defuse it by itself. The Court bears responsibility for protecting human rights – equality in the present instance. But—as has been proven over and over—it has only limited influence on a resolution of the problem.
The solution proposed by the previous government—a progressively higher conscription quota, with criminal sanctions—is too extreme. The threat to send thousands to jail is hollow and only invites civil disobedience on religious grounds.
The current law, which does little more than pass the buck, with no mandatory conscription until 2023, goes too far in the other direction. A third solution was proposed by Justice Yitzhak Amit: granting the ultra-Orthodox a full exemption from conscription for an extended period, in the hope that eventually they will join the workforce, find their place in society, and one day perform military service like everyone else. But can the model of the “people’s army” long persevere in such a situation? A statutory exemption from service for every seventh eighteen-year-old is a sure recipe for dismantling the Israeli commitment to military service.
Instead of these hopeless ideas, Israel should adopt a conscription model that is cognizant of the ultra-Orthodox fear of erosion of their identity and does not force individuals to serve, but rather employs economic incentives, both positive and negative, to encourage large-scale enlistment. The yeshiva world relies heavily on the state budget. Taking advantage of this reliance, in a respectful and effective manner, is the right direction to take.
The High Court gave the legislature one year to defuse the bomb. Are our leaders, Haredi and non-Haredi alike, ready to meet the challenge?
Yedidia Stern is vice president of the Israel Democracy Institute and a professor of law at Bar-Ilan University.