The Israeli High Court of Justice has a not entirely justified image as an institution which often intervenes in matters that are none of its business. Not entirely justified, but not unfounded, either, as nine of its justices proved this week [Sept.16] when they ruled unanimously to overturn the amendment to the anti-infiltration bill. The Knesset passed the amendment, with the support of Prime Minister Benjamin Netanyahu, in 2012. It enabled the state to jail infiltrators without trial for three years, a period which the court described as “disproportionate.”
Israel’s court system provides three accepted tests of proportionality: compatibility between the measures adopted by the authorities and their purpose; the existence of less damaging measures serving the same purpose; and, that the benefits far outweigh the damage caused by violating the rights of those affected. Of course, even when using these tests, proportionality remains a relative term.