Published in Israeli-European Relations: Between Confusion and Change, 2006.
Ambassador Dr. Robbie Sabel is a former legal adviser to the Israeli Foreign Ministry. He now teaches international law at the Hebrew University of Jerusalem, Tel Aviv University, and the Interdisciplinary Center in Herzliya.
“The Council of Europe was set up after World War II, having as its main objective the coordination of European legal affairs and advancement of human rights in Europe. Its membership is open to all ‘democratic’ European states. At present there are forty-six member states, and they include all the West European states and most of the Central and East European countries, including Russia. Several states are observers, including the United States, Canada, Japan, and Mexico.”
Sabel considers that Israel should aim to become a full member of the Council of Europe. “Israel should strive to join ‘clubs’ of democratic states. By joining the Council of Europe, Israel would be associating itself with like-minded democratic countries. We should set this as our goal, even though it cannot be immediately attained.”
The Council’s Institutions
“The Council of Europe’s executive body is the Committee of Ministers, which usually meets at foreign-minister level. Its Parliamentary Assembly consists of members of parliament of the forty-six member states. Israel is an observer to the Parliamentary Assembly but not to the council as a whole.
“Another important council institution is the European Court of Human Rights, which, like the other council institutions, sits in Strasbourg. The judges of this court are appointed individually, not as representatives of their states. This differs from appointments to the International Court at The Hague, where judges are appointed by UN geographic voting blocs, thus ensuring representation on the court for each of these blocs. The professional standard of the judges of the European Court is considered excellent and many of Europe’s leading jurists have served on the court.”
The Council and Treaty Making
“One of the council’s main functions is the drafting of treaties on legal issues. An important Council of Europe legal treaty, to which Israel is already a party, is the European Extradition Treaty. Israel has extradited people on its basis.
“Extradition depends on the law of the two countries involved. Israeli law permits extradition of Israel nationals, subject to the condition that if they are also Israeli residents, there is an agreement that the extradited person, if convicted and sentenced, may, if he wishes, serve his sentence in Israel. The European Extradition Treaty is one of the few treaties where there is no reciprocity. It could happen that Israel would extradite an Israeli national to a state that does not extradite its own nationals.
“Extradition is a two-tier process. The first tier is that if a foreign country requests extradition, the court in the requested country has to decide whether that person is extraditable. Ifthe court so decides, a political functionary-in Israel it is thejustice minister-has discretion whether to approve the extradition or not. The minister can deny the extradition if, for instance, he believes that the request is politically motivated, based on discrimination, or that the extradited person will not receive a fair trial. This procedure is similar in all countries. Inthe United States, the discretion is with the secretary of state.
“Normally, countries are very careful about with whom they sign an extradition treaty.A state only wants to conclude such an agreement with a state that shares its legal standards. With a multilateral treaty, one does not know which other countries are going to sign it later. Israel now finds itself having extradition relations with East European countries not all of which have, in our opinion, satisfactory legal procedures. Russia has on occasion requested extradition, but as far as I can recall we have never extradited anybody to Russia.”
Why Try to Become a Member of the Council?
Sabel expands on why he thinks Israel should become a member of the Council of Europe. “Israel has a natural place in clubs of democratic societies with independent legal systems. In the United Nations we are surrounded by a majority of nondemocratic states whose legal systems cannot be trusted. The UN record in enforcing human rights is dismal. This is because states, whose policies are the antithesis of human rights, sit in judgment on democratic states.
“The UN Human Rights Commission is a travesty of human rights. We have seen countries like Libya, Sudan, and Uganda, under Idi Amin, sitting in judgment on Israel and the Western democratic states. The same happens inother bodies. I once had to present Israel’s case before the UN Committee against Racial Discrimination. Elected ‘experts’ from Arab countries with dismal human rights records solemnly castigated Israel. It was a very unpleasant experience.
“We should strive to join groups where we are at home. The Council of Europe has as members the West European states, which are all democratic. Israel is a natural member in this habitat. Israel can be particularly proud of its legal system, which is one of the more successful elements of our society. Another good reason to try to join is that it could become an opening to other European organizations, where we would have perhaps a political or economic benefit. As a long-term goal Israel should strive for membership in the EU and in NATO, but our chances of being accepted are not high since we bring with us the ‘baggage’ of the Middle East conflict.
“From my experience in the Israeli Foreign Service, I have learned the advantage of setting specific goals. In the absence of diplomatic goals, the Foreign Ministry tends to occupy itself with the day-to-day solving of urgent issues. That makes the setting of a goal so crucial, even though it may be difficult and take years to achieve. In the past, as a result of intensive diplomatic effort, Israel has been partially accepted to the WEOG (Western European and Others Group) at the United Nations in New York, though not yet in Geneva.
“All in all, it may be easier to apply to a nonpolitical organization. The Middle East conflict is not on the agenda of the Council of Europe. We would have no objection if Arab states also requested to join the council, although it is unlikely they will because it would mean accepting the jurisdiction of the European Court of Human Rights. Furthermore, requesting membership of the Council of Europe does not entail asking the European states to make what some could consider an anti-Arab move.”
The Council and Human Rights
“Byjoining the council, all Israeli actions and laws would be subject to the scrutiny of the European Court of Human Rights. This may well be problematic for Israel since we have emergency legislation and are fighting terrorism. Several European countries, which are fighting terrorism, are uncomfortable with the European Court of Human Rights. They feel that its judicial approach encumbers their actions, and Israel might find itself in a similar situation.
“Israel is administering areas outside its sovereignty, which the rest of the world sees as military occupation. Although Israel claims they are disputed territory, the European Court may decide that they are occupied military territories. If the court decides that this is a military occupation, we are going to have the same problems as Turkey has in Northern Cyprus, where the European Council considered that these areas are under Turkish occupation and hence subject to the scrutiny of the court.”
The Court and the UK
“In several instances, the European Court has decided against the United Kingdom. For Israel this is a good indicator of the sort of scrutiny we will be subjected to, as both countries have well-respected independent legal traditions that are relatively similar.
“Britain was severely criticized by the European Court for its interrogation methods in Northern Ireland, which included hooding, standing for long hours, loud noise, and sleep deprivation. The European Court decided that although this did not amount to torture, it was nevertheless illegal. The Israeli security services applied similar interrogation methods to those used in Northem Ireland. However, the Israeli Supreme Court intervened, and reaching a decision similar to the European Court, it outlawed them, considering them to be cruel treatment.
“Several examples where the UK was condemned concerned delay in justice. As we know, justice delayed is justice denied. One specific case in a British labor tribunal was only decided after nine years. In another, it took three years for an appeal to be heard in a criminal court. This was considered by the European Court a violation of human rights.
“Another issue on which the court decided against Britain concerned parole cases. Parole boards in Britain are administrative bodies that have wide discretion as to reduction of prison sentences. The court ruled that because of the quasi-judicial nature of the parole boards, a prisoner should have all the rights and defenses available to somebody brought before a judicial system.
”Yet another case concerned access to courts. Somebody tried to sue a British police officer. The British court ruled that the police had immunity. The European Court decided that it is not reasonable to grant complete immunity to police on civil issues. In the Israeli system, of our own volition, we have abolished the immunity, so here we were a step ahead of the UK.
“One complainant from Northern Ireland who was known as an outspoken radical Catholic was denied work as a civil servant in Northern Ireland. The British courts denied access to the labor court, claiming that it was a security issue. The complainant claimed that he was denied the job because of his religious beliefs and not on security grounds. The European Court decided that the complainant must be granted access to a British court, which should determine whether he was legitimately barred on security grounds.
“Another case concerned a governor of a prison who had tried a prisoner accused of stealing in the prison. The governor treated it as an administrative offense and denied the prisoner the right to contact a solicitor. The European Court concluded that even though it concerned an administrative process, the proceedings were quasi-judicial and the defendant was entitled to defense counsel.
“The European Court also decided that people who live under the flight path of Heathrow Airport could sue the airport authority for the harm caused by noisy flights. Under British law, this was not possible.
“Among many other issues brought before the Court was also that of legal aid. The British give free legal aid in an appeal only if they consider that there is a good chance of the appeal succeeding. In numerous cases, legal aid was denied on the ground that there was no chance of such success. Thus persons had had to appear in a British high court pleading difficult legal arguments without a lawyer. The European Court ruled that, if complicated legal issues were involved, the defendant was entitled to have legal aid in the appeal irrespective of whether the government or legal-aid people felt there was a chance for the appeal to succeed.
“In Israel, prisoners can vote, which they could not in the British system. The European Court overturned the British law. Another interesting question concerns sexual relations of prisoners. The European Court gave a similar decision to that of the Israeli court. The latter decided in the Yigal Amir case that there is no absolute right for prisoners to have sexual relations in prison, even if they are married.
“Therewas thehorrible British custom ofpunishing kidsbywhipping them with a birch. In one case brought before the European Court a child was taken to a police station, held down by two policemen, and birched. The European Court decided that this was a violation of human rights law. Such treatment of children would be unthinkable in Israel. “In extradition cases the European Court condemned the British position a number of times. Britain wanted to return a Sikh to India.
The court decided it could not because he was likely to be persecuted. “When Britain was about to extradite somebody to the United States, where he was liable to a death penalty, the European Court decided that Britain must obtain an undertaking from the United States that if he were extradited, no death penalty would be imposed.
Israel has a similar system.”
How Can Problems Be Solved?
“If Israel became a council member, we can assume that some people would apply to the European Court claiming that there is discrimination both in Jewish and in Islamic religious law. It is probable that the court may find fault with these. This would certainly be a downside of joining the European Council.”
When asked how these problems could be solved, Sabel says every country has problems of a similar nature. One reason he is confident that Israel could resolve issues with the European Court is because the the Israeli justice system is very independent, respected, and of a high standard. For example, in the Israeli criminal system the defendant has more rights than in most European countries. This includes the right to cross-examine witnesses and the right to be present at the trial. Not all European countries have such a legal requirement.
“We have perhaps the world’s most highly developed system of supervision of the government by courts, i.e., the Israeli Supreme Court sitting as a High Court of Justice. The Israeli Supreme Court has also intervened in affairs that the British courts would have been reluctant to deal with. One example is the actual conduct of military activities when there was a claim of abuse of human rights.
“This further proves my point that Israel has such a strong tradition that we could live with this supervision. It is more effective than the American or the British system, and Israel can be proud of it. The question is, if we already have this internal legal supervision, do we need other countries looking over our shoulder? The answer is that it is necessary to get into ‘the club,’ and Israel can live with such supervision even if it will not be easy.”
Living with the Court’s Decisions
“The European Court will not always approve of Israel, but if France, the Netherlands, and the UK can live with its decisions, we can too. Great Britain fought a bitter war in Northern Ireland. It is now using major force in Iraq. Every country now has problems with immigration, terrorists, and their detention. Our legal system is certainly better than that of Turkey, let alone Russia. If Russia can live with the court, we can.
“As far as religious laws are concerned, it seems to me that we will have to prove that they are not discriminatory. For instance, under Jewish law a woman cannot serve as a religious judge. The European Court may consider this discrimination. Israel will have to prove that these are different systems, and not discriminatory ones. We certainly will not change Jewish law because of them.
“Countries are expected to follow judgments of the European Court, but there are no sanctions. The most obvious example is Russia. It does not have an independent judiciary. So in these cases the European Court serves as a court of appeal, which can criticize situations but no more than that. The assumption of the council is that if you are a democratic and law-abiding society, and you become party to the treaty, you will implement the rulings of the court.”
The Obstacles to Membership
Having reviewed the situation, Sabel asks:”So what are the obstacles?” He replies: “The first major question asked will be: ‘Is Israel in Europe?’ An answer could be that the term ‘European state’ is a flexible term. It applies to Turkey, though it is overwhelmingly in Asia. It applies to Cyprus, which is a very close geographical neighbor of Israel. It applies to Malta, which is closer to Africa than to Europe. It applies to Russia, which lies to a large extent in Asia. Ifthe definition is west of the Ural Mountains, then we are part of Europe. IfAzerbaijan and Armenia are considered European states, then Israel can fairly make a bid for membership. Israel has been accepted as part of Europe by sports bodies. And if the Europeans wish to, they can accept Israel as a European state.
“The second obstacle to membership is that it requires the unanimous approval of all member states, which means that one state can veto it. Politically this may be an advantage, because Israel can try to convince one state at a time. There are very few states, if any, that would like to go on record as the one state that prevented Israel’s membership of a nonpolitical human rights body. There is no violently hostile anti-Israeli state in the council. A country such as Sweden, which is critical of Israeli policy, might even encourage our membership because it would entail human rights supervision. From my experience, if the Israel Foreign Ministry works on one country at a time, these normally say: ‘If the others agree, we will also do so.”‘
Sabel explains that when he was the legal adviser to the Foreign Ministry, the issue was not raised. He had, however, no time to deal with it because there were day-to-day crises. Only afterward, when he had more time to reflect, did he recommend that joining the council should be set as a political goal.
”At the United Nations we are certainly never going to be at home. There will always be an anti-Israeli majority. The Foreign Ministry and other ministries would prefer to have us get into NATO. But, as mentioned, our chances there at present are nil. Neither is membership of the EU an option.”
The Importance of Joining a Club
Sabel sums up his view.”Joining a club is important. The United States will not accept us as another state. We are not part of the Middle East or Africa. With all the weaknesses and problems of Europe, we are closer to it than to any other international grouping. Europe is no longer a Christian society except perhaps when it comes to anti Muslim feeling.
“I suspect Turkey is not going to become a member of the EU, basically because it is a Muslim country. As an aside, if Turkey is excluded, it may move in the opposite direction and turn into an Islamic-fundamentalist society. That would be a problem for Europe. In that sense I think it is in Europe’s interest to bring in Turkey as an EU member. Turkey has a strong tradition of secularization and trying to exclude Islam from the government. Europe does not want to lean particularly on an army, but Turkey’s military is what guarantees its secular character.
“When Israel pinpoints a diplomatic goal, we often achieve it. Israel might be offered observer status in the council, but this should not be our objective. Ifour goal is limited to observer status we will certainly not be offered full membership.As Israel will not be accepted as a NATO member, the Europeans may agree to offer membership of the Council of Europe as a consolation. Itwould not be seen as a tremendous political achievement for Israel in the way that membership of NATO or the EU would. Yet it is achievable and would be an achievement, albeit a minor one. The Council of Europe proudly points out that no state not a member of the council has ever been accepted to membership in the EU.”