Judge (Ret.) A. Arbel:
We are dealing with a law that seeks to deal with a sensitive and important issue of immigration and with the concern that Israel will become an attractive destination country for infiltrators. Those whose identities are complex and most of them come from countries where living conditions are difficult and they are often in danger.
I join the comprehensive opinion of my colleague, Justice A. Vogelman, in all its parts, as well as the second part, which refers to the opinion of the President, A. Grunis. I agree with those who claim that the state is "firing a powerful 'cannon' in the form of holding custody for a period of up to one year, in response to a small-scale phenomenon of new infiltrators" (see paragraph 9 of the judgment of Justice Y. Amit).
- In the matter before us, we are required to examine the constitutionality of the two arrangements enacted in Amendment No. 4 toPrevention of Infiltration Law (Offenses and Jurisdiction), 5714-1954 (hereinafter: Amendment No. 4 andThe Prevention of Infiltration Law or The Law respectively), following the repeal of Amendment No. 3 to the Prevention of Infiltration Law in the matter of Adam. Amendment No. 4 includes two main arrangements: one, the anchored In the section 30A the law, which allows infiltrators to be held in custody for a maximum period of one year; The second, anchored In Chapter 4' The law, which establishes for the first time the establishment of a "accommodation center" open to infiltrators.
- Before I address each of these arrangements separately, I would like to point out that the starting point for the discussion as far as I am concerned is the principles that we have established In a High Court of Justice case 7146/12 Adam v. Knesset [Posted inNevo] (16 September 2013) (hereinafter: Human Interest). In the same matter, I discussed the large-scale infiltration phenomenon that Israel is facing, as well as the fact that most of the infiltrators originated in Eritrea, and another part came from Sudan, mostly illegally. It is important for our purposes that even today, the State of Israel adopts a policy of "non-temporary deportation" of Eritreans to their country of origin, in accordance with the principle of non-refoulement, which is enshrined in Article 33 of the International Convention Relating to the Status of Refugees of 1951, 21 Article 65 (hereinafter: Refugee Convention), which means that the state will not remove a person to a place where his life or liberty is in danger. As for the Republic of Sudan (North Sudan), the return of its citizens is not possible due to practical difficulties stemming from Israel's lack of diplomatic relations with that country. With regard to South Sudanese nationals, the State of Israel has begun to return infiltrators to its territory (see paragraph 32 of the judgment of my colleague, Justice Vogelman; Adamparagraphs 7-10 of my judgment). As it turns out, most of the infiltrators who arrived from these countries, whether those who are already in Israel, and those who are likely to arrive in the future, cannot be deported to their countries, and therefore they continue to stay in Israel in accordance with Israel's international obligation to them. As my colleague, Justice Vogelman, points out, at this stage it appears that the solution of deporting infiltrators to a third country that is safe for them does not provide "a close and tangible horizon of deportation in relation to the majority of the population of infiltrators" (paragraph 40 of the judgment of my colleague, Justice A. Vogelman). The aforementioned matters have significance when we examine the constitutionality of the arrangements intended to deal with the phenomenon of infiltration and infiltrators, and I will return to this later.
- As mentioned in the opinion of my colleague, Justice A. Vogelman, and in continuation of the remarks on the matter Adam, the Refugee Convention defines the term "refugee" as someone who is outside the country of his citizenship due to a well-founded fear of being persecuted, inter alia on grounds of race, religion, or citizenship (Article 1(2) of the Refugee Convention). The Convention requires that those who are recognized as refugees be granted rights in various fields and prohibits deportation to countries where they are in danger. I will note that in my opinion, the Refugee Convention raises great difficulty, not because of what it contains, but because of what it does not have. The Convention does not divide the burden of dealing with the phenomenon of refugees and asylum seekers among the countries of the world. Thus, a situation can arise in which the burden falls unequally and unreasonably on certain countries for various and varied reasons, such as geographical proximity, economic attractiveness, regulatory obstacles, etc. Therefore, I am of the opinion that the solution of deportation to a third country, as long as it meets the conditions of international law, is a proper solution that should be advanced. It should be noted, however, that despite the fact that it is portrayed in other media, the data for the time being show that the burden imposed on the State of Israel in dealing with asylum seekers is not higher than that of other Western countries, and certainly not that of developing countries, on which most of the burden, surprisingly, falls (see Tali Kretzman-Amir, "Introduction" Refugees and Asylum Seekers in Israel: Social and Legal Aspects 7, 16 (edited by Tali Kretzman-Amir, expected to be published in 2014); Yes, they saw interest Adam, paragraph 105 of my judgment). This burden must be accepted with understanding, certainly against the background of the history of the Jewish people, the values of the State of Israel and its commitment to human rights, even when it is not an Israeli person.
Section 30A of the Law - Custody for one year
- In the matter Adam We have determined that Section 30A, which allowed the detention of an infiltrator in custody for a maximum period of three years, violates the right to liberty and the right to dignity, the importance of which I discussed there:
"The right to liberty is one of the foundations of the democratic regime and is based on the values of the state as a Jewish and democratic state...