This is true even now. My colleague, Justice Amit, who holds that section 30A passes the tests of the limitation clause, clarifies that "the purpose of deterrence does not turn the infiltrator by force from a target into a means" (paragraph 10 of his judgment). I cannot agree with these words. Indeed, as my colleague points out, deterrence is often accompanied by both criminal punishment and administrative measures. Indeed, as long as the deterrence of the public is not the only consideration underlying the action taken, it may be legitimate. The difficulty is when the sole or main purpose is to deter the many. In such a case, the state's use of the infiltrator as a tool for the benefit of the public raises great difficulty. The quote brought by my colleague from the High Court of Justice 7015/02 Ajuri v. Commander of IDF Forces in the West Bank, IsrSC 56(6) 352, 374 (2002) explains this explicitly when it prohibits the demarcation of a place of residence for reasons of general deterrence only, without the personal danger of that person. The fact that these are infiltrators who entered Israel illegally does not make deterrence as a sole consideration legitimate. If we want to punish infiltrators for entering Israel illegally, we must do so within the framework of criminal law and in accordance with all its rules (see "Detention of Refugees and Asylum Seekers in Israel," יונתן ברמןRefugees and Asylum Seekers in Israel: Social and Legal Aspects 144, 151 (edited by Tali Kretzman-Amir, to be published in 2014)). Such punishment, accompanied by public deterrence, may be legitimate when it is carried out in a proportionate manner and in accordance with the rules of criminal and international law. This reason cannot be used for the purpose of imposing administrative measures whose sole purpose is to deter the public and not to punish them. It should be noted that even in the example of the "bargaining chips" that my colleague, Justice Amit, opposes, it could have been argued that people who committed much more serious and difficult acts than those committed by the infiltrators were still guilty, and yet this court refused to approve the use of their administrative detention for deterrence purposes only, since the detention was not intended for punitive purposes but only for deterrence purposes (see Adamדובר, paragraph 87 of my judgment; Additional Criminal Hearing 7048/97 Anonymous v. Minister of Defense, IsrSC 55(1) 721 (2000)). Finally, I would like to mention that UNHCR guidelines explicitly prohibit the detention of a person in order to deter future asylum seekers (see UNHCR Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to Detention, September 21, 2012, http://www.unhcr.org/505b10ee9.html). It is therefore necessary to examine whether there is an additional purpose for placing the infiltrators in custody for one year, which can be joined by the deterrence purpose as a legitimate ancillary purpose.
- The state insists that the second purpose that is at the base of the Section 30A In its current version, the goal is to allow the state to exhaust the procedures for identifying the infiltrators, while allocating the required time to formulate and exhaust avenues for their exit from Israel. I agree with my colleague, Justice Vogelman, that this purpose is appropriate. However, I also agree with his conclusion that the clause does not meet the proportionality requirements set out in the limitation clause. It is clear that a period of one year in custody is too long for the infiltrator to exhaust the identification procedures. It is customary that infiltrators can be held in custody for a period of several months, but this is in order to exhaust a real possibility of deporting the infiltrator (see Adam, paragraph 19 of my judgment). In our case, insofar as we are dealing with infiltrators who are not subject to removal, as detailed above, there is no justification for holding them in custody beyond the time required for their identification. Indeed, there is currently a channel of deportation to a third country. However, this procedure is currently conditional on the infiltrator's consent to his deportation. Detaining the infiltrator solely for the purpose of persuading him to agree to his deportation to a third country may make his consent unconditional, out of fear that his liberty will continue to be deprived for a long period of time as long as he does not agree to his deportation. What emerges from the foregoing is that I, too, share the opinion that a period of time of a full year in prison, given the names of infiltrators who cannot be deported, is disproportionate, and therefore I cannot agree with President Grunis's position. The proportionality of the length of the period in custody depends on its purposes. The detention of an infiltrator who is being deported back to his country in accordance with international law is not the same as the detention of an infiltrator who cannot be deported from Israel at all. With regard to the latter case, I am of the opinion that a period of one year is also not proportionate at all. I do not, therefore, believe that דוברSection 30A They stand firm in the face of the scrutiny of the limitation clause.
- I will add and emphasize, as I also mentioned on the matter Adam, that the determinations regarding the proportionality of the arrangements are made against the background of the data before us. If these data change, the balance may change for the purpose of examining the proportionality of the arrangement:
"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 can be said that the benefit is equal to the damage, and Israeli society cannot endanger itself for the benefit of the residents of other countries. However, in my opinion, we are a very long way from this black picture" (Adam, paragraph 115 of my judgment).