15 February 2024

To the Prime Minister, Minister of Foreign Affairs and Trade, Minister of Defence and Attorney General

We, the undersigned scholars and practitioners of law, human rights, international relations and conflict studies of New Zealand, call on the New Zealand government to act without delay to ensure it is fully compliant with its obligations at international law in light of the ruling by the International Court of Justice (ICJ) on 26 January 2024 in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel).

In its ruling, the ICJ found that it is “plausible” that the State of Israel is in violation of its obligations under Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), therefore effectively rejecting the State of Israel’s claims to the contrary.

The ICJ also ordered the State of Israel to comply with six provisional measures, including to “take all measures within its power to prevent the commission” of acts of genocide and to “take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip”.

We note that these orders are strong, clear and unambiguous in creating obligations of result, not merely of conduct. Additionally, the ICJ ordered the State of Israel to prevent and punish the direct and public incitement to commit genocide, to prevent the destruction and ensure the preservation of evidence and to report to the ICJ within one month.

In our view, the ICJ’s findings and orders effectively put New Zealand, and every other state party to the Genocide Convention, on notice. Specifically, the ICJ’s ruling requires states to seriously consider the significant legal implications of maintaining ongoing relations with the State of Israel as it continues its military operations in Gaza. This is because such relations may constitute complicity with genocide under the Genocide Convention.

The ICJ’s ruling also serves as an urgent reminder that all state parties to the Genocide Convention, including New Zealand, have binding obligations at international law to prevent and punish genocide, conspiracy to commit genocide, incitement to genocide and complicity in genocide. As the ICJ held in its decision in Bosnia and Herzegovina v. Serbia and Montenegro, the obligation to prevent genocide arises “the instant that the state learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed”. The prohibition of genocide is also a jus cogens norm at international law that is of the highest legal, political and moral importance because it protects individuals, human groups and the whole of humanity from the moral disaster of collective annihilation.

Unfortunately, it appears that the State of Israel is failing to comply with the ICJ’s binding orders and does not intend to comply with them in the near future. In addition to a number of concerning comments by leaders of the State of Israel criticising the authority and impartiality of the ICJ’s ruling, civilian casualty numbers remain extremely high, with nearly 1,000 more Palestinians being killed by Israeli military attacks in the week since the ICJ’s ruling. We also note that on 12 February, the State of Israel commenced military attacks on Rafah where more than 1 million displaced Palestinians fled to for safety, and that more than 50 Palestinians have been killed by these attacks as of 12 February.

In our view, New Zealand’s obligations to prevent genocide at international law require the New Zealand government to do everything within its power to ensure that the State of Israel complies with the ICJ’s orders, and that other governments comply with their obligations under the Genocide Convention as well.

In order to fulfil these obligations, we call on the New Zealand government to:

• In the strongest possible terms, call on the State of Israel to fully comply with the ICJ’s orders for provisional measures without delay. We note that on 12 February 2024, the Prime Minister stated he was “extremely concerned” by the State of Israel’s attacks on Rafah and that it “is important [the State of Israel] act within the confines of international law and any approaches they have need to be very targeted, very precise, with great care around civilians and the impact on civilians.” However, we believe that stronger and clearer calls for compliance with the ICJ’s ruling are urgently needed;
• Call for an immediate ceasefire in Gaza, including an end to the State of Israel’s military operations in Gaza. We note that due to the constraints of the Genocide Convention, the ICJ could not, and did not, formally order a ceasefire. Nevertheless, it is clear that compliance with the ICJ’s orders, at minimum, requires a significant reduction in civilian deaths from combat, disease or starvation. This means that compliance with the ICJ’s orders requires in essence both a ceasefire and significant provisions of humanitarian aid;
• Recall the New Zealand Defence Force’s team that was recently deployed to the Red Sea if the team risks assisting the State of Israel with its military operations in Gaza in any direct or indirect way;
• Halt the export of any of New Zealand’s arms and arms components to the State of Israel and suspend any existing defence industry partnerships with the State of Israel;
• Confirm in unequivocal terms that New Zealand will not suspend nor reduce its funding for the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). We note that a failure to continue UNRWA funding risks making New Zealand directly complicit in violating article 2(c) of the Genocide Convention by “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”;
• Call on the United States, United Kingdom, Canada, Australia and any other government who has paused or suspended funding to UNRWA to reinstate their funding immediately. The decisions of several governments to suspend funding to the UNRWA during this critical time, is arguably a form of “collective punishment” of the civilian population of Gaza and  undermines binding ICJ orders for “immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance”. The ICJ’s ruling stated that over 1.4 million Palestinians in Gaza have been forced to leave their homes and are sheltering at UNRWA facilities that are “overcrowded and unsanitary” (para 49). Therefore, a call from the New Zealand government to other governments to reinstate their funding to the UNRWA is necessary for New Zealand to uphold its binding obligations to prevent genocide at international law;
• Warn any New Zealand citizen fighting with the Israeli Defence Force (IDF) that their actions may contribute to genocidal acts; and
• Commit to investigating and prosecuting New Zealand citizens for any involvement in potential war crimes, crimes against humanity, genocide and torture, as well as any acts which potentially breach the ICJ’s binding orders.

In taking the above actions, the New Zealand government would demonstrate that it understands the risks of being complicit in genocide and that it is seriously committed to avoiding these risks.

However, a failure to do so would demonstrate that New Zealand is no longer committed to the international rule of law and to upholding the rules-based international order that New Zealand’s democracy depends on.

Yours sincerely,

Dylan Asafo
Dr Max Harris
Professor Emeritus Jane Kelsey
Professor Emeritus David Williams
Annette Sykes
Rodney Harrison KC
Professor Richard Jackson
Dr Suliana Mone
Frances Joychild KC
Associate Professor Jeremy Moses
Dr Fleur Te Aho
Barbara-Luhia Graham
Associate Professor Treasa Dunworth
Kingi Snelgar
Professor Khylee Quince
Professor Paul Myburgh
Sarah Jerebine
Paula J. Wilson
Cameron Jacob-Sauer
Afshan Afzaly
Reina Va’ai
Aneesha Dahya
Seleti Taimani
Rangi Cowley
Jedi McCarthy
Jack Oliver-Hood
Sebastian Bisley
Ruth Buddicom
Julia Spelman
Litia Tuiburelevu

If you are a scholar and/or practitioner of law, human rights, international relations and conflict studies of New Zealand and you wish to sign this open letter, please complete this google form and your name will be added as soon as possible.

Image: South Africa’s genocide case against Israel at the International Court of Justice, the Hague on Friday 12 January 2024 (Wikimedia Commons)