Thorpe to take Australia’s genocide regime to the ICC, as Regev case struck down
Dec 17, 2024
The private prosecution that Krautungalung elder Uncle Robbie Thorpe launched against Mark Regev, a former senior advisor to Israeli PM Benjamin Netanyahu, that charged the Australian Israeli with advocating genocide was taken over by the Commonwealth Director of Public Prosecutions late on the afternoon of 9 December and the case was then officially dropped in court the next day.
The second mention of the Regev case took place at the Magistrates Court of Victoria on Tuesday, 10 December, and a representative of CDPP Ralene Sharp KC explained that their boss had determined to take over the prosecution and immediately drop it, as “based on the material provided”, there were “no reasonable prospects of conviction on the charge before the court”.
Uncle Robbie raised the case against Australian-born Regev in April, and a 14 August charge sheet was issued by the court, which was then served upon the dual citizen in Jerusalem.
Six offences in respect of the crime of genocide appear on the federal law books. Yet, the five core genocide crimes cannot be prosecuted without the greenlight from the Australian attorney general, and while the criminal offence involved in this latest case, advocating genocide, avoids the need for chief lawmaker approval, it has now been shown the state can prevent such a case as this regardless.
So, while the outcome of the Regev case was by no means a given, it was neither entirely unexpected.
And for Thorpe, this is part of a long game of attempting to get a genocide case up in an Australian court, but, falling short of that, the endgame is having the International Criminal Court take on a broader Australian genocide prosecution, which can only happen after all local legal options have been exhausted.
Crime scene Australia
“Australia has yet again shown it is both unable and unwilling to prosecute crimes against humanity, such as genocide,” Uncle Robbie told Pearls and Irritations, following the CDPP decision to strike down the case.
“It is clear that this reluctance stems not only from the political ties Australia shares with Israel and the United States but also, perhaps more profoundly, from the fear of exposing Australia’s own historical and current genocide against the original peoples of this continent,” he continued.
The charge sheet issued against Regev covers the 7 October 2023 to 15 April 2024. It lists 13 points allegedly comprising advocacy for genocide upon the Palestinians of Gaza, and this includes the then Netanyahu advisor having appeared on ABC Radio National on 10 October 2023 and expressing his support for a complete siege of the Gaza Strip, or the cutting off of all water, food, fuel and power.
This is not the first genocide prosecution that Uncle Robbie or his Sydney-based lawyer Daniel Taylor have launched in the Australian courts. Thorpe first did so in 1997, which was a case that sought to invoke the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. And both men have launched such prosecutions under the current offences sitting on the books since 2002.
Despite Victorian Magistrate Brett Sonnet having no other option but to dismiss the case last Tuesday, he did state that he was not “judging the merits” of the prosecution. “I want to be crystal clear,” his Honour added, “you can take the matter to a superior court”.
And following the decision, Thorpe underscored that “the public interest in this case is clear and we will continue to seek an indictment for Mark Regev and anyone else who advocates for genocide here”.
Blocking prosecutions
Following the ratification of the Rome Statue of the International Criminal Court in 2002, the Howard government inserted the three core international crimes then captured in the statute – war crimes, crimes against humanity and genocide – into division 268 of the Criminal Code Act 1995 (Cth).
These offences carry universal jurisdiction, which means they can be used to prosecute these crimes in Australia, when they’ve been perpetrated by any individual, regardless of their nationality, anywhere across the planet.
The forms the crime of genocide can take include by killing, causing serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about physical destruction, the prevention of births and the forcible transference of children. All these offences carry life imprisonment.
To prove the crime of genocide it must be shown that the destructive act is being perpetrated in respect of a particular national, ethnic, racial or religious group, and it’s proven that the perpetrator “intends to destroy, in part or in whole” that specific group.
The crimes of genocide are contained in sections 268.3 through to 268.7 of the Criminal Code.
The issue with prosecuting these atrocity offences is that the Howard government further inserted sections 268.121 and 268.122 into the Criminal Code, which together contain the ‘attorney general’s fiat’, and this requires that the nation’s chief lawmaker must sign off on any prosecution involving the division 268 international offences, or the case is refused. And such a decision cannot be reversed.
Lawyer Daniel Taylor understands this all too well, as when he launched a 2019 crimes against humanity prosecution in respect of then Myanmar state counsellor Aung San Suu Kyi, it was knocked back due to the attorney general’s fiat. And a similar such case launched by another legal team in 2011 against then Sri Lankan PM Mahinda Rajapaksa suffered the same fate.
Regev stood charged with advocating genocide, contrary to section 80.2 of the Criminal Code, which is a crime that carries up to seven years imprisonment. This offence also has universal jurisdiction, however, this crime, which was enacted by the Turnbull government in 2016 in relation to the threat of Islamic jihadists, does not require attorney general sign-off in order to prosecute it in court.
To the higher authority
Taylor told P&I that during the 10 December hearing, the magistrate outlined that he and Thorpe had no speaking rights, following the representatives of the CDPP formally dropping the case.
Sonnet added that the court did not want the private prosecution putting evidence on the record, although Uncle Robbie did then get to speak in court on the day.
“As for the next move, the matter can be taken to the ICC, as it can be said there is an actual case here. The Australian and Israeli authorities literally have no intention of prosecuting the case, having regard to the fact that Israel itself did appear at the first hearing asking for the case to be squashed,” the lawyer explained. “So, the matter is ripe for the ICC.”
Israel sent in a team of local lawyers to argue Regev’s defence at the 9 October first mention. This involved the claim Regev should be immune from prosecution in the Australian courts, as his alleged offending was conducted as part of his role as an Israeli advisor, and under the Foreign States Immunities Act 1985 (Cth), foreign states are exempt from the jurisdiction of local courts.
“There are two potential reasons for dropping the case,” Taylor further set out, “one is that they don’t consider Regev was advocating genocide or they consider the Foreign States Immunity Act does cover him, and if that is the case, that would be wrong, as the argument is the Act doesn’t apply to criminal matters, and in particular, it doesn’t apply contrary to international law.”
As Uncle Robbie explained earlier this year, despite the local courts repeatedly refusing genocide prosecutions, the process he is undertaking involves ‘shopping around’ the case to the courts in an attempt to successfully achieve a genocide conviction.
Yet, if that goal is not achieved, these efforts can then be utilised to facilitate the launch of an ICC prosecution that would take into account the evidence that Thorpe has long been entering onto Australian court records during past court appearances.
“Australia makes a mockery of international law. You’re hardly a civilised society if you can’t prevent and punish genocide,” Uncle Robbie said, following the CDPP decision to drop the case. “What does ‘universal jurisdiction’ and ‘no immunity’ mean if we can’t deal with these most heinous of crimes.”
“Australia makes it clear what their position is by being reluctant, unwilling and incapable of applying international law,” said the Krautungalung elder in conclusion, as he hinted at the prospect of the international genocide trial.