THERE is a “good case” that Israel has breached international law by detaining crew members on the Madleen aid ship, an expert has told The National.
On Monday, Israel imprisoned 12 crew members on board the vessel that was sailing along the Egyptian coast and heading towards Gaza to deliver aid.
It is understood that the Madleen was captured in international waters some 200 kilometres (120 miles) from Gaza.
Heidi Matthews, a professor specialising in international criminal law at York University in Toronto, Canada, said that as the naval blockade on Gaza is “unlawful”, there are several points of law that the Israeli forces breached by capturing the Madleen.
Matthews explained that there are two specific conditions which allow countries to enforce a blockade in international waters.
First, if a vessel is making an “effective contribution to opposing forces”, for example, if it had weapons on board.
Second, if it was posing an “imminent and overwhelming threat” to Israel, that would allow them to “invoke self defence on the high seas”.
Matthews explained: “Obviously, neither of these conditions have been met in these circumstances.
“So because of that, intercepting the vessel and taking custody of the crew members is not the enforcement of a lawful blockade, as Israel is claiming.”
The Madleen, which carried campaigner Greta Thunberg and French member of the European Parliament Rima Hassan, was sailing under the UK red ensign, meaning it was under UK jurisdiction while in international waters.
“I think there’s a good case that these actions, specifically the detention of crew members could constitute crimes against humanity, specifically unlawful confinement and unlawful appropriation of property, as well as an attack against civilians as such,” Matthews (below) added.
Mitchell pointed out that Israel’s response to the capture of the vessel, such as deeming it a “selfie yacht” and releasing pictures of Thunberg being handed a sandwich, were intended to undermine the mission as a “silly thing”.
However, she added that it was clearly being “treated as though it were a threat” by the deployment of Israeli forces.
Matthews added: “This is a little technical, but because the UK is a state party to the Rome Statute of the International Criminal Court, and Israel is currently conducting a widespread or systematic attack against the civilian population of Gaza, intercepting this vessel on the high seas would trigger the territorial jurisdiction of the United Kingdom, and again, a couple of those crimes against humanity that I mentioned.”
She added that the UK Government should be thinking about the incident “in terms of international criminal law and the law of war” and that it should “be acting accordingly”.
Dr Jacques Hartmann, an international law expert at the University of Dundee, also said that if the blockade on Gaza was found to be unlawful, then so would the interception of the Madleen.
"Whether such an interception is lawful depends on the status of the Gaza blockade," he added.
"UN experts, humanitarian organisations, and several States now consider the blockade to amount to collective punishment, in violation of the Fourth Geneva Convention and possibly of binding provisional measures issued by the International Court of Justice in 2024 and 2025, requiring Israel to facilitate humanitarian aid to Gaza."
He added: "Even if the blockade were lawful, stopping a neutral vessel under the British flag must comply strictly with the law of naval warfare, including requirements of notification, verification, and proportionality."
The National has repeatedly pushed the Foreign, Commonwealth and Development Office (FCDO) for a response following the crew being detained on Monday.
After refusing to respond for hours, it directed our journalists to a BBC live blog with comments from the Prime Minister’s spokesperson who said they wanted Israel to resolve the situation “safely with restraint, in line with international humanitarian law”.
Earlier, Israel was preparing to hold the 12 unlawfully detained activists in separate cells in Givon Prison in Ramla, according to local media.
Israel Katz, Israel's defence minister, said that he had instructed the IDF to show the crew “video of the horrors of the October 7 massacre when they arrive at the port of Ashdod”.
Matthews said the UK should consider taking a case to the International Criminal Court (ICC).
However, she noted the attack the Israeli navy committed in 2010 on the Mavi Marmara, a flagship of a flotilla crewed by pro-Palestinian activists who were attempting to deliver 10,000 tonnes of aid to Gaza.
The UN Human Rights Council found that Israel’s military had broken international laws by taking “disproportionate action”. Prosecutors at the ICC declined to open an investigation into the alleged war crimes that took place during the attack.
Matthews said it was “unfortunate” the case didn’t proceed as it may have “acted as a deterrent”.
“The Madleen itself has obviously captured global attention, right? And so the purpose was always to do that,” she explained.
“Given the amount of media attention, I wasn't expecting them to actually sink the ship.
"Instead, they're trying to create this alternative narrative where a military intersection is actually not an attack, but some kind of rescue mission.”
She added: “The battle is really over framing.”
