On 22 September 2014, the Israeli Supreme Court sitting as a High Court of Justice quashed in a 217-page judgment (HCJ 8425/13 Anon v. Knesset et al, full text in Hebrew) the Prevention of Infiltration Law (Amendment no. 4) (full text in Hebrew).

The amendment enacted two schemes: first, section 30A, authorising the detention for one year of any ‘infiltrator’ (the term was introduced by the above law, and shall be used in quotation marks in this discussion) entering Israel after the amendment’s coming into force. Second, Chapter D, authorising the holding in an ‘open’ residency centre of ‘infiltrators’ whose removal from Israel (according to the State’s official determination) proves to be ‘difficult’. ‘Infiltrators’ are to be held indefinitely unless they ‘voluntarily’ agree to return their state of origin, or to be transferred to a third state (see my critique of the legislation on this blog, and my discussion of the proceedings before the HCJ).  Almost a year to the day, on 16 September 2013, the same panel quashed Amendment no. 3 that authorized the detention of “infiltrators” for three years (see my analysis on this blog). This is the first time that the Supreme Court has re-annulled primary legislation.

Justice Uzi Vogelman authored the main judgment, which holds both legislative schemes to be in violation of the constitutional rights to liberty (section 5 of Basic Law: Human Dignity and Liberty) and to human dignity (sections 2 and 4 thereof) by failing to satisfy the proportionality requirement in section 8 (the ‘limitation’ clause); the latter provision stipulates that ‘[t]here shall be no violation of rights under this Basic Law except 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.’ Justice Vogelman emphatically stated that ‘infiltrators are people too. And if this merits explanation, let it be said explicitly: infiltrators do not shed any part of their dignity due to their method of arrival [or] by entering a detention or residency facility, and their right to human dignity remains intact even if they have arrived irregularly’ [123].

Six of the nine justices (Uzi Vogelman, Miriam Naor, Edna Arbel, Yoram Danziger, Salim Joubran, Esther Hayut) annulled section 30A (Chief Justice Asher Grunis and Justices Neal Hendel and Yitzhak Amit dissenting).A close reading of the previous judgment (HCJ 7146/12) reveals that Justice’s Hendel’s dissent should have been anticipated, as he dissented from the operative part of the otherwise unanimous judgment. Similarly, Chief Justice Grunis asserted in his concurrence that a re-enacted law authorising a significantly shorter detention period could pass constitutional muster. In contradistinction, Justice Amit’s dissent rests on distinguishing between section 30A and the quashed Amendment no. 3: while the former applies prospectively, and is hence directed towards a non-specific group of persons who have not yet transgressed the state’s borders, the latter applied retrospectively to ‘infiltrators’ who entered prior to its passage [7]. However, as Justice Arbel noted, newcomers subject to the state’s jurisdiction enjoy constitutional rights to liberty and dignity [9]; moreover, a nulla poena sine lege principle seems out of context.

Seven justices (including Justice Amit) annulled Chapter D in its entirety. Chief Justice Grunis and Justice Hendel considered only the provision authorising three daily counts to be unconstitutional, and would have removed the second (midday) count requirement, leaving intact the morning and evening counts as well as the rest of Chapter D. The main judgment cautioned against letting ‘the name “open facility” to lead us astray’: it is “a facility similar in essence to a closed facility” which violates part of the minimum dignified life to which every person is entitled’ [126]. Notingthat ‘the requirement to be present for the three daily counts, alongside the great distance from settlements in the region, negates nearly any possibility to leave the centre on a routine basis’, justice Vogelman rhetorically asks: ‘is it, therefore, an ‘open’ centre’? [Id]. Indeed, even the dissenting justices observed that the scheme as it currently operates is akin to aclosed facility: the significant difference between the majority and dissenting judgment pertains to the (in)ability to mitigate the harm caused by the scheme, and the consequent divergent remedies.

This is a truncated version of a post previously published on the European Society of International Law Interest Group on Migration and Refugee Law blog.