If this is the situation as a rule, all the more so in our case. First, all the constitutional methods in relation to which the comparison is made recognize the difficulty inherent in the violation of human dignity and freedom. Special sensitivity is reserved for detention or similar means, which means a physical deprivation of individual liberty to one degree or another. Second, it is a global issue, which puts renewed challenges (in some ways) on the agenda of many countries. Third, it is precisely the fact that this is a new issue that in its current incarnation has almost no precedent – that can assist the court in determining the constitutional scope.
- This is said in relation to the totality of the petitions before us, and to the role of comparative law in constitutional analysis – both in relation to the detention of infiltrators and in relation to their placement in the open detention center. However, alongside the advantage and benefit that the North has compared to other Western countries, it seems to me that this case requires caution before making any comparisons. I will clarify.
Israel is the only Western country that can be reached by land from Africa. In addition, there are no "enticing" target countries near Israel to which the infiltrators are likely to continue. At the same time, Israel – as my colleague the judge pointed out Y. Amit (paragraph 15) – "surrounded by a ring of hostility", in a way that does not allow it to reach arrangements and agreements with neighboring countries. It should be added that many of the infiltrators originate from North Sudan, a country hostile to Israel. In this way, Israel is different from all other Western countries that are also dealing with the phenomenon of infiltration. The combination of the data puts the government, and the legislature, in a particularly difficult starting point.
It is clear that the situation of the State of Israel is not similar to that of European countries, where one country may share a common border with several countries that are united with it under one political umbrella, and are willing to participate in a regional solution to the issue of absorbing infiltrators. There are countries that are at the forefront, and the constitutional balances about them may be more sensitive. From this perspective, it is not a coincidence in my opinion that these countries – such as the United States and even Australia (even after the ruling given in recent days) – adopt an immigration policy that allows for the detention of infiltrators for a longer period of time and imposes stricter conditions of supervision for released infiltrators. In my opinion, it would be fair to say that these countries are in a situation similar to that of Israel, more so than other countries – which were presented in my opinion on the matter Adam - Which shortens the period and eases the conditions of supervision. The question is not whether it is possible to adopt a different policy, but whether – against the background of the unique characteristics of the state – constitutional intervention by the court is required in the chosen policy.