High Court of Justice 3227/20 Mika Kliger v. Minister of Defense - part 9

Noam Sohlberg

Vice President

Judge Dafna Barak-Erez:

1. Beautiful Demands - And he fulfills it. This is what we must say to the respondents before us, and accordingly order the acceptance of the petition in those aspects of it that have not yet received an appropriate response throughout the years of litigation in the case.
2. Members of the Vice-President v. Solberg He wrote beautiful and important words regarding women's right to equality in military service, even in combat roles, and I agree with their main points and welcome them.  In my colleague's judgment, the legal and constitutional basis underlying the matter was laid out, the normative anchors of which are - which are no longer new at the current stage - They are found in both legislation and case law.  These indicate that the overarching principle that governs our case is equal opportunities between men and women in all matters relating to placement in positions in military service, including combat roles.  Indeed, on the level of principle, my friends and I see eye to eye.  However, I disagree with the operative result he reached.
3. Many beautiful words have been said over the years on the subject before us, but the reality is - Despite the changes that have taken place in it - It did not rise to their level sufficiently. The difficulty is even exacerbated by the fact that at this time, practical experience shows that this is no longer a theoretical discussion of abstract rights, but rather a fait accompli: in recent years, women have participated in various combat roles and demonstrated success "on the ground." Accordingly, the demand for women to be assigned to combat roles is also increasing.  The problem is that the growing trend of integration encounters a new "glass ceiling" time and time again.
4. Against this background, after about six years in which the petition has been pending, I am of the opinion that there is room to make the order nisi absolute with regard to the head of the petition, which deals with the integration of women as part of an experience in the maneuvering armored system. In accordance with the respondents' latest statement, such an experiment is planned to open in the November 2026 recruitment cycle.  In my opinion, the time is ripe to grant this the binding force of a judgment.  At the same time, I agree with the position of my colleague the Vice President Solberg On the issue of expenses.
5. The starting point for the hearing before us is the order nisi issued on June 27, 2023 (in the previous panel that heard the petition - The President A.  Hayut With the judges A.  Baron andRabbi Ronen).  This order nisi requires three remedies: one that concerns experience in a mobility or mortar platoon in one of the maneuvering infantry brigades; The second is about experience in the maneuvering armored formation; and a third is about experience in elite and special units that conduct screening procedures.
6. In the time that has elapsed since the order nisi was issued, two of the avenues listed have been fulfilled, at least partially - Experience in a mobility unit that operates subordinate to a maneuvering brigade as well as experience in special elite units.  On the other hand, the experiment with the maneuvering armor has not yet begun, despite the fact that almost three years have passed so far.  Indeed, these were not ordinary days, to say the least.  The State of Israel has been going through a difficult and bloody war since October 7, 2023, and dealing with its consequences is not yet complete.  This was to justify, or at least explain, the postponement of the beginning of the experiment of incorporating women into the maneuver's armor.  Accordingly, we received update notices from time to time and allowed the army to reschedule the start of the process.  It is worth mentioning: from the outset, the response stated that the experiment to integrate women into the maneuvering armor will begin at the end of 2024.  Later, against the background of the events of the war, it was reported that it had been postponed to November 2025.  Now that date has also passed, and we have been informed of the intention to begin the trial only a year later, in November 2026, subject to "operational circumstances and the ability of the Armored Corps to allocate the resources and command attention required for its success." From my point of view, such vague statements can no longer be satisfied.  In fact, this is an immeasurable postponement, which, in my opinion, is inconsistent with the obligation reflected in the court at previous stages.
7. Unlike the members of the Vice-President Solberg I therefore do not believe that the petition has exhausted itself.  At least when it comes to incorporating the experience in the maneuver's armor, no satisfactory answer has been provided so far.  Likewise, I do not believe that it can be said that the dispute in the circumstances of the case was limited to the application level only.  Even if the fundamental aspects are not in real dispute, it should be remembered that the implementation of the principles is an important and vital element in the striving for equality, and this should not be taken lightly.  The petitions before us were not intended for a festive declaration that would be a book on me, but would remain as a stone that has no opposite.  They are intended to bring about real change while anchoring the principle of equality - Its foundation, as stated, is in both legislation and case law - in the ground of reality.  It is not needless to mention that An important aspect of the wording of the order nisi related to the timing of the opening of the said experiments, while noting that the respondents were required to explain why they would not be opened "right now and without waiting for the completion of the experiments" that had already begun them.  In this sense, too, the question of timing has been at the center of the discussion throughout the entire process, and not only as a practical issue - Rather, it is a matter of substance.  The postponement of the experiment with maneuvering armor time after time does not reflect only an application difficulty, but rather an ongoing violation of equality.  In another context, I noted that "In the field of law, there is a well-known saying that 'Late justice is justice that has been denied' (justice delayed is justice denied)" (High Court of Justice 6733/21 ‏Association "Justice for Children" N' Minister of Health, paragraph 38 [Nevo] (8.5.2024)).  It seems that this statement is also relevant to our case, so that a delay in itself can create a difficulty that is not only practical or technical.
8. I agree with my colleague the Vice President Solberg that the developments that took place over the years of litigation led to a real change in the foundation that lay the foundation for the petition. However, this is the case only with respect to two of the three heads of the order nisi that was issued.  The new decisions made in relation to the last remaining head did indeed reflect some progress.  However, and this is the main thing, they did not bring about a real change in the infrastructure regarding the integration of women into the maneuver armor.  On the contrary: the gates of the maneuvering armor remain closed to women - For a generation before the petition was filed, and also during the six years of litigation in it.  This fundamental fact remains in place, and it is the main touchstone for the question of whether the petition should be deleted at this time.  I answer this question in the negative.
9. Needless to say, the partial response to the integration of women into maneuvering armored units is not just one detail that is missing.  In many ways, this is a central component of the order nisi given in terms of the practical chance of a real return for the integration of women fighters into the ground units.  The special units, as they are - Speciality.  The number of people admitted to them is limited, even among men.  The experience with the mobility unit encountered difficulties related to physiological adjustment.  In light of the above, at this time, the experience in maneuvering armor has the most significant potential for the integration of women in combat roles from a numerical point of view.  In this sense, this is an important channel, And not In one of many alternatives.
10. Members of the Vice-President Solberg noted with reference to the seminal precedent that was set In a High Court of Justice case 4541/94 Miller N' Minister of Defense, IsrSC 49(4) 94 (1995) (hereinafter: the מילר) because "the dispute... Essentially, the question of whether the IDF's reliance on "planning reasons," "systemic feasibility," and "organizational limitations" justifies sweepingly denying women the possibility of being selected for a pilot course, regardless of their abilities.  The answer given to this question - was negative; It was held that the said policy of the IDF amounts to discrimination that improperly violates the constitutional right to equality" (paragraph 43 of its opinion).  Against this background, I do not believe that significant weight should be attached to the distinction that my colleague supports in the continuation of his opinion "Between consideration of considerations such as this for the purpose of deciding on the question of Its very existence of experience, and taking into account them in order to determine Appointment the opening of the experience" (paragraph 64 of his opinion).  In fact, I have not found that in the circumstances of the case this is a distinction that stands firm.  In my impression, the respondents' arguments regarding the justification for postponing the experiment from time to time - Such as the need for "command attention" and "resource allocation" - they actually sharpen the tension with the judgment given in the matter מילר.  Even if it were possible to accept the concrete reasons for this or that rejection at the beginning of the experiment, it seems that the weight to be attributed to such reasons decreases when the rejection is repeated.  Eventually, the rejections add up to each other and "quantity becomes quality." Postponement and postponement, and then another postponement - In the world of action, they are like sweeping prevention.  And let's not forget that our matter is focused only on the experimental stage, where the way to arrange a permanent route for the recruitment of women to the maneuvering armor depends on its results, and in this sense - It is still shrouded in fog.  Ostensibly, we are in a different era, which is reflected, among other things, in the commitment expressed by the respondents to the integration of women in combat roles as well.  However, care must be taken that the correct rhetoric will remain without practical backing for a long time.
11. I do not ignore the difficulties of the period, beginning with the bitter war that broke out on October 7, 2023, and continuing with the rounds of fighting against Iran, the last of which was during the writing of the judgment.  Against this background, we have waited very patiently for a large number of updates from the respondents, while attributing real weight to the security constraints.  I will further clarify that after reviewing the matter, I am of the opinion that the confidential appendix that was submitted is not sufficient to justify the absence of a commitment to a concrete date for the beginning of the experiment.  Naturally, the exact date can be somewhat postponed, and may change according to the needs of the army and security conditions.  This has indeed been the case until now.  But an exemption without anything is impossible.  A deadline for the experiment should be clearly defined, as a fixed and binding anchor.  I am afraid that the conclusion of the hearing before us with important statements but without concrete remedy will bring us back to a great extent the starting point.
12. In view of the totality of the considerations presented before us, I am of the opinion that the recent date set by the respondents should be regarded as an upper limit for the opening of the experiment for the integration of women into the maneuver's armor. Personally, I was willing to order an even earlier date for the beginning of the experiment, but for practical reasons related to the need to enable appropriate preparation, and all the more so against the background of the ongoing combat efforts - In my opinion, it is possible to suffice with the date proposed by the respondents and to begin an experiment for the integration of women into the maneuvering armor starting from the recruitment cycle of November 2026.  The said date leaves the respondents with sufficient flexibility and provides them with sufficient preparation time.  There is, therefore, no room to continue to allow the postponement of the experience further and further.  It is required to anchor the date specified as a binding date in a judgment.
13. I would like to add the obvious to a large extent, but it is still important to say that the inclusion of women in combat roles not only advances the realization of the right to equality, but also reflects the need of the army itself to make the most of the human potential that exists in the State of Israel in order to deal with security challenges.  It is therefore not a matter of a "balance of interests" between the security need and the right to equality.  On the contrary: these are two vectors pointing in the same direction.
14. More than necessary, I will also add this: military officials have addressed the need to conduct a meticulous and detailed experiment with regard to the integration of women into maneuvering armored units.  The optimal conditions for conducting this experiment in its full format were becoming more and more distant due to the events of the war.  Against this background, one may wonder whether there was no reason to see the period of the war as not only a hindrance to conducting the experiment under "laboratory conditions", but also as a "field study" that provided ample evidence regarding the functioning of women on the battlefield during this period, including in the armored forces (and without taking lightly the distinction between the activity of the armored forces in border defense and the activity of maneuvering armor).  In fact, women's ability and courage have been reflected again in the framework of the fierce fighting in recent years.  In this respect, the war may have required some delay in some of the initiatives, but at the same time it itself provided a justification for advancing the process, on the basis of proven successes.  Things are beautiful not only in the skies of the country, but also on its solid ground.
15. Members of the Vice-President Solberg He mentioned, and very rightly, the fact that the integration of women into combat roles in the army, as well as the promotion of women to senior positions in the public service, is an explicit obligation that stems from the law itself.  I will ask Continue on the path of comparison and note that the integration of women in senior positions in the public service is also still lacking, despite explicit legal provisions and now that the Supreme Court has issued rulings on this issue (see: High Court of Justice 1363/23 The Women's Caucus in Israel v.' The Government [Nevo] (Judgment from 24.2.2025; Decisions from the days 28.10.2025, 11.1.2026, 19.2.2026 and 16.3.2026)).  Experience therefore shows that correct principles are not enough.  לא המדרש עיקר, Rather, it is the act.
16. And from the general to the specific: I would suggest that we order that the remaining part of the order nisi be made absolute in the sense that women will be integrated into the maneuvering armored armored system no later than the November 2026 recruitment cycle.
17. Before concluding, I will note that the opinion of my colleague the judge has now been placed before me. Anonymous And I look forward to joining her important words.  The Experience Track who was at the basis of the litigation Outline a modest start from the outset, and one must be careful not to turn a one-time experience into a prediction of everything.  In any event, and since the hearing before us is limited to the scope of the order nisi - Becoming Absolute Focused on an experience that has not yet been started in the maneuvering armored formation.