- My colleague the Vice-President is of the opinion that the petitions have reached their conclusion and exhausted themselves - and that they should be dismissed at this time. As stated, in my opinion, too, there is no longer any point in continuing the judicial accompaniment of the petitions; but unlike my colleagues, I am of the opinion that the conclusion that follows from this at this point in time is that the petitions should be accepted.
In order to clarify my position, I will ask two questions. First, I will examine the question How the IDF Should Fulfill Its Legal Obligations in a Practical Manner at the Present Time - This is both in terms of the basic criteria for the implementation of the experience model, and in an operative manner in view of the order nisi given in the petitions. Given the answer to this question, the second question is Whether and in what manner does the IDF's failure to comply with its obligations justify the granting of relief by this court?
How to Exercise the Duty of Equality
- First, we must begin and emphasize the obvious - the military's obligation to treat women equally in placement and selection for positions, the existence of which is indisputable, is a legal obligation. We are not dealing with moral aspirations or questions of desirable military policy, but with a legally binding provision. Therefore, it is not enough to have good will, declarations of principle, and an effort on the part of the military to recognize its compliance with this duty - but it is a duty whose compliance is measured by the test of the outcome. Moreover, in the Hovladian sense, against this obligation stands the right of female soldiers and candidates for security service to an equal opportunity to be selected for positions and to fulfill all the military tasks assigned to men - and this too must be taken into account.
- Nevertheless, in light of the practical challenges involved in opening the gates of the various units to women, the respondents emphasize that the way to fulfill the obligation of equality at this time is through the model of experience. This model is based on promoting the gradual integration of women into positions, while opening limited and temporary frameworks in a few units, in a manner designed for controlled examination and the accumulation of experience - before a permanent decision is made on their integration into these and other units and on the manner of integration. According to the respondents, the use of experiences first increases the chances of success in integrating female fighters into these roles. This is because this model enables a process of learning and drawing lessons; ensures the protection of the health and bodily integrity of female soldiers; and enables a centralized allocation of resources to the logistical envelope required for the integration of female fighters into the existing units.
The Experiment Model Courage In a High Court of Justice case Alice Miller as a suitable way to integrate women into a pilot course; He was found to be the model with the highest chances of success in the framework of the IDF's staff work; It is evident that in practical life we are dealing with a model that bears fruit - As found in previous successful attempts. This court accepted the military's policy in this regard, and accordingly - The order nisi that was issued by us in the present petitions also dealt with the implementation of the duty of equality through the integration of women in experiences.
- Although, as stated, the model of experiences was accepted by us, its very existence or the intention to maintain it is not sufficient to conclude the discussion. As I noted above, the duty of the army is not merely an obligation to make an effort - rather, the army is obligated to ensure that in the test of the outcome the doors of all suitable positions are open to women, since "the real test of equality is its realization, in practice, as a consequential social norm" (High Court of Justice Alice Miller, at p. 117). The pattern of placement of women in measured quotas and in a few units under scrutiny and criticism does not in itself negate the violation of the right to equality, but only constitutes a stage towards meeting the goal itself.
At the same time, in my opinion, at the present time, a proper application of the experience model may satisfy the requirements of the law. The explanation for this is that the respondents have satisfactorily demonstrated that there are planning, operational, and budgetary hurdles that make it impossible to integrate women into combat roles In one fell swoop. In this situation, when on the one hand there is the duty of equality (and the right of the petitioners and others to equality), and on the other hand there are other interests - After all, the key principle for balance between one and the other is The Principle of Proportionality. Thus, too In a High Court of Justice case Alice Miller, the court ruled that the integration of women in military roles in an experimental framework may be a proportionate solution in light of systemic constraints (ibid., at pp. 117-118; and also quoted in paragraph 75 of my colleague's opinion). In view of these things, I am convinced that as of this time and in relation to the positions that are the subject of the petitions - The model of experiences in itself is a proportionate solution, Because it violates the rights of the petitioners and others to an extent that does not exceed what is required, while maintaining an appropriate relationship between the duties of the army and the other aforementioned considerations.