"The military commander is therefore not permitted to take a step of demarcating the place of residence for reasons of general deterrence only. However, when the demarcation of the residence is justified due to the danger of a person, and the question is whether to make use of this authority, there is no flaw in the military commander also considering considerations of deterring the public. Thus, for example, this consideration may be taken into account when choosing between detention and the demarcation of a place of residence. Our approach properly balances the essential condition for the existence of a personal risk – which the demarcation of the place of residence is intended to prevent – and the essential need to maintain the security of the area" (HCJ 7015/02 Ajuri v. Inspector of IDF Forces in the West Bank, IsrSC 56(6) 352, 374 (2002); emphasis added).
Similarly, there is no flaw in the fact that in the framework of legislation dealing with immigration policy, the state will also consider considerations of deterrence, and the purpose of deterrence does not turn the infiltrator by force from a target into a means. I will note that my colleague Justice Jubran, in his discussion of the matter Adam In order to curb the infiltration, he believed that "it is conceivable that a normative situation that prevails in a certain country may be part of a set of considerations that have the power to influence the decision of migrant workers whether to 'infiltrate' into it. It seems that there is no impediment in principle to taking measures that constitute a 'normative barrier' to these migrant workers" (Name, paragraph 10). Similarly, my colleague Justice Hendel was of the opinion that "Deterring potential infiltrators is not an end in itself. It constitutes a kind of intermediate purpose, on the way to the realization of the main purpose of the law."Name, paragraph 2).
The very worthy purpose of defending the sovereignty of the state with all that this entails, by denying from now on an economic incentive to come to Israel, directed at a non-specific public of infiltrators by force, can therefore also justify the element of deterrence inherent in detention for a period of up to a year. This is in addition to the additional purposes of identifying and characterizing the infiltrator, locating his country of origin, obtaining documentation for him, and formulating channels for exit from Israel to other countries. There is a reciprocal relationship between these purposes. The more the element of deterrence erodes and the influx of infiltrators increases again, the more difficult it will be for the state to realize the purpose of formulating exit routes from Israel to other countries. In this respect, and as the state noted in its response, the more the purpose of the law is realized and the phenomenon of infiltration is reduced, the more there will be no need to apply it and its infringement of the right to liberty and dignity, if at all.
- Hence the foundation of proportionality.
There is a correlation between the degree of social benefit derived from the law and the degree of infringement of the constitutional right. The third subtest of proportionality is perceived as a value test of weighing and balancing harm and benefit. The more severe the infringement of the right, the more powerful a public interest is required to justify the infringement. My colleague Justice Vogelman examined and found that the law failed in the last hurdle in the form of the third subtest of proportionality, and that "the marginal addition or 'additional benefit' of the law to the realization of the deterrent purpose does not stand in proper proportion to the damage caused to an infiltrator held for a period of one year in custody, for the violation of the right to liberty and the right to dignity that this entails.