In every society there is always an internal struggle between individual liberty and collective responsibility. It exists here in the United States, in the form of mandated jury service, for example, and it is at the forefront in Israel where the raging debate regarding mandatory conscription for military service touches on all aspects of societal existence, including religion, economics, and notions of equality.
After the Holocaust and the establishment of Israel, there was an urgent need to rebuild the Torah world, which had been decimated during the war. Israel’s first prime minister and defense minister, David Ben-Gurion, adopted a military draft deferment for haredi yeshiva students who pledged that their sole occupation was the study of Torah. The number of eligible deferments grew from under 400 a year before 1970 to more than 60,000 a year by 2010.
In 1998, the Israeli Supreme Court took up the issue of the legality of these deferments, explaining that the rationale for them no longer existed. Supreme Court president Aharon Barak argued in Rubinstein v. Minister of Defense that the “yeshivas are flourishing in Israel, and there is no serious worry that the draft of yeshiva students, according to any arrangement, would bring about the disappearance of the [yeshiva] institution.”
Barak further argued that those haredi men who did not remain in yeshiva were not seeking employment due to their fear of being drafted, thus creating a community ravaged by poverty and largely dependent on the government for subsistence. His sentiments were echoed by Justice Elyakim Rubinstein in the 2012 decision of Resler v. Knesset:
Nevertheless, we need to admit the truth, [that] unlike in the Jewish-Haredi society in other countries, which has understood that only a few brilliant individuals can live under the tent of Torah all their lives, in Israel a whole complicated sociological system has been built that even its leaders know, deep in their hearts, is not good and not appropriate, that because of military duty thousands of people sit in the yeshivas, where it is not their place…. these people, if they served in IDF, and if they worked like any other person while also making time for Torah [study]…would be efficient both to the State, to their community, and to themselves.
The nature of the debate, beyond the economic and practical necessity of employment, revolved around the conflict between two competing basic rights: the right to freedom of religion, via the pursuit of religious studies, and the right to human dignity, via an equitable public sharing of the burden of military service. The controversy sparked widespread upheaval, pitting those who serve for three or more mandatory years of military service from age 18-21, followed by decades of reserve duty, against those who perform no military service at all.
Following the 1998 Rubinstein decision, which found that the military draft deferments lacked any specific legal authorization, the “Deferment of Military Draft for Yeshiva Students Whose Occupation is the Study of Torah Law” (the Tal Law of 2002) was enacted. The law authorizes the defense minister to defer the military service of any Israeli national who requests it, provided he studies in a yeshiva on a regular basis for at least forty-five hours a week and does not engage in any other occupation.
The debate did not end upon the enactment of government legislation sanctioning these deferments. The Israeli Supreme Court, in the 2006 case of Movement for Quality of Government v. Knesset, weighed in on the Tal Law, holding:
[a] grant of a swift deferment – which over the years transforms into an exemption from military service – for thousands of persons eligible for military service based only on reasons of study in a yeshiva constitutes harm to the equality of everyone in the majority group who is subject to military service. The distinction among persons designated for military service based on a religious worldview is discrimination without any relevant difference.
Though the court recognized the basic right of freedom of religion, it ruled that such human rights are not absolute and can be violated by a law “befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.”
The U.S. Supreme Court has taken a similar approach concerning the limiting of fundamental constitutional rights, requiring that any such infringement serve a compelling government interest and be narrowly tailored to serve that interest. In upholding the Conscription Act of 1917, mandating military service for men of suitable age, the court, in Arver v. United States, unanimously recognized the Constitution’s delegation to Congress of the power to declare war and to raise and support armies. The court also recognized the principle of the reciprocal rights and duties of citizens:
It may not be doubted that the very conception of a just government and its duty to its citizens includes the reciprocal obligation of the citizen to render military service in case of need, and the right to compel it.
The U.S. law was universal. Its subsequent repeal, when the nation adopted an all-voluntary military service, did not change its legality. And the country maintained a mandatory selective service registration.
The Israeli Supreme Court revisited the viability of the Tal Law in 2012, holding that the law violated the right to equality and that the Knesset could no longer extend its application. The repeal of the Tal Law required the government to attempt to introduce alternative legislation to stop the differential treatment extended to sectors of the public. It also created momentum for the absorption of the haredi community into the workforce and national or military service.
The recent election brought into the government the HaBayit HaYehudi (Jewish Home) and Yesh Atid (There is a Future) parties, under the leadership, respectively, of Naftali Bennett and Yair Lapid. While holding differing philosophies on certain core issues, the two parties are united in seeking to end inequality in shouldering the military burden.
The legislation they’ve been hammering out would put an end to the rampant military exemptions within the haredi community. Haredi men would be allowed to postpone military or national service for three years, until the age of 21, during which they will still receive state funding for their Torah learning. Following this period, a maximum of 1,800 exemptions per year would be granted for the most talented haredi Torah scholars, with the rest doing either IDF service or civilian national service.
Bennett rejects the notion that haredim are doing their equal share by remaining full time in the yeshivas. “My haredi brothers, army service is also a mitzvah, no less than that,” he says, adding that “the current situation in which thousands of haredim do not serve or work cannot continue. It’s not ethical and it’s not sustainable.”
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The Netzah Yehuda Battalion, also known as Nahal Haredi, founded in 1999, is a fully functioning battalion of haredi combat troops established within the IDF to accommodate the religious needs of these soldiers. By all accounts, the battalion functions effectively. In 2007, the Israeli Air Force began the Shahar Program, which integrates haredi youth into technological, logistics and intelligence service for the military, while training them to incorporate these skills into civilian employment. There is no reason why such concepts cannot be implemented on a much larger scale within the IDF.
Bennett’s mention of the mitzvah of military service stems from the words of the Mishnah in Sotah and in Parshat Shoftim. The Mishnah mentions two types of military conflict: obligatory wars (milchemet mitzvah) and discretionary wars (milchemet reshut). According to the Rambam, obligatory wars were those fought by Joshua to liberate Eretz Yisrael from the Seven Nations, the war to eradicate Amalek, and wars “to defend Israel against an enemy that attacks.” A discretionary war would be one undertaken to obtain some other objective, such as extending the borders of the state.
The parshah discusses the nature of warfare and the limited military exemptions during times of discretionary armed conflict. The kohen addresses Israel in collective terms and then advises the military officers to speak to the people, enunciating four exemptions from battle. The first three deal with newly built homes, newly planted vineyards, and the first year of marriage – during which the mind of the would-be soldier is not directed on the mission ahead. The fourth exemption is for the fearful and fainthearted, lest such a person instill the same fear and uncertainty in other soldiers.
The Rambam (Hilchos Melachim 7) rules that in obligatory wars the exemptions don’t apply. In such wars, the Mishnah continues, “all go forth, even the bridegroom out of his chamber and the bride from her bridal pavilion” (Sotah 8:8).
Israel Supreme Court Justice Menachem Elon discussed the halachic nature of warfare and these exemptions in the case of Shein v. Minister of Defense, which involved a conscientious objector’s refusal to serve in the Lebanon War. Elon reiterated the position that Jewish law does not sanction the aforementioned exemptions in obligatory wars.
None of the exemptions apply to avoiding military service for the pursuit of Torah study. Rather, it seems the two must co-exist within the life of each soldier. Yeshivat Hesder is a yeshiva program that combines advanced Torah studies with IDF military service. Hesder service usually lasts between five and six years, with about two years dedicated to army service, usually in combat units, and the remainder designated for intensive Torah study. The program has been extremely successful and was awarded the Israel Prize, Israel’s highest honor, in 1991 for its “special contribution to society and the state of Israel.”
Both Hesder and Nahal Haredi demonstrate Israel’s ability to find the necessary accommodations within the IDF for a successful integration of religious soldiers. Moreover, the IDF has a Military Rabbinate, established in 1948 by Rabbi Shlomo Goren, which provides religious services to soldiers and makes decisions of a halachic nature on military issues.
Israel today needs courageous leadership, both in the haredi yeshiva system and in the political establishment. With great challenges facing Israel and world Jewry, including threats of terrorism, war, and international isolation, Israeli society needs to be unified around certain core values. Those core values, the esprit de corps of any embattled nation, instill confidence that everyone is in the fight together for the common good. In Israeli society that common good is measured, by the overwhelming majority of citizens, in the willingness of each citizen to put his or her civilian life on hold in military or national service for the betterment of the nation.
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In November 2012, during the height of Operation Pillar of Defense, I traveled to Israel on behalf of the National Council of Young Israel along with several dozen rabbis from the Rabbinical Council of America. Continuous rocket fire strafed the communities of Southern Israel from Hamas-ruled Gaza, with the center of the country also targeted. An IDF ground invasion of Gaza appeared imminent.
Our mission, the purpose of which was to express our deep love and support for Am Yisrael and Eretz Yisrael during those difficult days, included meetings with senior military officials and government ministers. We went to the Gaza border and received military briefings from officers poised for battle. Many of them were reservists; one was a chief executive of an Israeli company. Despite his critical business responsibilities, this officer knew his priorities; he told me that in a time of war his obligations as a soldier take precedence over his obligations as a civilian.
I asked myself: What if this soldier rationalized that his contributions to the Israeli economy, also an important service to society, justified his avoiding military service? Other soldiers could make similar arguments in attempting to justify their removal from the field of battle. Such a scenario would be untenable and perilous to the nation’s defense.
The mass dereliction of duty among haredim has long been a force for polarization in Israeli society. Moreover, the insistence of much of the haredi community on shunning other measures of societal cohesion, evident in the refusal to display the national flag on holidays or recite the prayer for the state and the IDF, has left a widespread impression of brazen indifference or worse to the fate of the nation and diminished the honor of Torah in the eyes of millions of Israelis.
Israel’s new government is faced with tremendous challenges and opportunities. Its stated aims are to elevate the dual nature of the state’s Jewish and democratic character. The dati sectors, both haredi and national-religious, are uniquely situated to set the standards the rest of the nation could emulate.
By emphasizing the primacy of Torah study alongside the Torah values of military service and raising a family, Orthodox Israelis would help ensure that the Jewish nation, experiencing a rebirth in its ancestral homeland after 2,000 years of exile, builds a society worthy of Hashem’s blessing – a society that hastens the full redemption of our people.
About the Author: Charlie Miller is a criminal defense attorney in New York. He served on active duty for six years in the United States Navy from 1994-2000 as an officer in the Judge Advocate General’s Corps, including a year in the White House as a military aide to the president. He is a national board member of the National Council of Young Israel.
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