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.

In the case of the anti-infiltration law, what the judges considered disproportionate was deemed totally proportionate by the executive branch, as well as the legislative branch and many of Israel’s citizens, especially those living where illegal infiltrators tend to live. Israel has to employ stringent measures to prevent infiltration into its territory, for security, social and economic reasons. It’s an unpleasant but necessary task. From here on, it's about interpretation: to what extent the measures are necessary and how they can be successfully implemented.

The infiltrators, as Judge Uzi Fogelman wrote, have the “right to freedom and the right to dignity as provided by the basic law for every human being.” Justice Edna Arbel noted that “the result of this ruling will not be easy for the Israeli public,” which also has rights. The court assumes that the government of Israel “will find a way to deal with the situation with the means at its disposal.” Perhaps it will find a way, and perhaps not. “Dealing” with the situation is also a relative term: Let’s say that as a result of the court decision there are an additional 500 infiltrators annually — will it then seem proportionate, too? And if it results in an additional 5,000 infiltrators? And what about another 20,000?