The passage of time has not solved the equation with its two unknowns, but it seems that the answers to these two questions are not binary. There is no doubt that the physical barrier in the form of the fence has great weight in curbing the phenomenon of infiltration, and to this must be added other factors, such as the changes that have taken place in the Sinai Peninsula and Egypt. But apparently, the normative barrier and the knowledge of the change in the "rules of the game" also contributed. The infiltrators are not refugees from the sword, like the refugees who are flooding Syria's neighboring countries these days. Eritrea and Sudan – which are the main countries from which the infiltrators come – are not neighboring countries to Israel, and Israel is not the alternative without it – as far as they are concerned. Therefore, Israel's economic attractiveness as a preferred target country for infiltrators from these countries is weighted.
- This has implications when we come to examine the legality of Section 30A to the law. During the hearing, I asked the petitioners' representatives what tools a state can use, according to them, in order to protect its borders. This question remained unanswered, and more precisely, the answer was that the state was not entitled to take such a step as Section 30A to the law. I find it difficult to accept this answer, and that is why on this point I also parted ways with that of my colleague Justice Vogelman.
My colleague also agrees that in other circumstances, and if it becomes clear that many thousands are massing on our borders, we will face a different kind of constitutional balance (paragraph 37 of his judgment). Similarly, my colleague Justice Arbel said in her judgment in the Adam case:
"Indeed, it is possible that all the extremes may have passed, infiltrators will continue to flock en masse to the State of Israel despite the sophisticated physical obstacles, the consequences for local society will only worsen despite the sincere and strenuous attempts of the state and its authorities to prevent this in various and varied ways, and the State of Israel will be under threat and fear of severe harm to its vital interests. Indeed, in this situation, it will be possible to say that the benefit is equal to the damage, and Israeli society cannot endanger itself for the benefit of the residents of other countries" (ibid., para. 115).