Pearls and Irritations

Mark Regev is “an Australian citizen and he’s advocating for genocide,” Uncle Robbie Thorpe explained last week.

“It is really offensive and insulting for Aboriginal people to have an Australian citizen talking about starving people, lying and inciting people to join up with the IDF and commit these crimes on the other side of the world.”

The second hearing in respect of the advocating genocide prosecution that Thorpe, a Krautungalung elder, has filed against Australian Israeli Mark Regev, with the alleged offending having occurred while he held the position of senior advisor to Israeli PM Benjamin Netanyahu from October 2023 to April 2024, is set to take place this coming Tuesday, 10 December, at the Victorian Magistrates Court.

The case holds global significance as, over the course of the Gaza genocide, which Israel began in October 2023, lawyers across the planet have attempted to launch genocide prosecutions against representatives from their own nations or those from Israel. However, it appears that Thorpe’s action has proceeded further than any other similar attempt.

Uncle Robbie filed for the case in April and a 14 August charge sheet was then issued, with Thorpe’s side arranging for the papers to be served on Regev in Israel.

And in having arranged some formidable Australian lawyers to defend Regev at the 9 October first mention of the case, the Israeli state clearly acknowledged the potential it has to move ahead towards indictment and prosecution, where all other such attempts have failed.

“The time has come on all of this”

“This case will show whether Australia is serious about prosecuting crimes of genocide, or whether we allow our citizens to shield themselves behind bureaucracy,” Uncle Robbie told Pearls and Irritations. “We have a law in place with a lower burden of proof than international law. It must be applied now to ensure accountability for actions that promote destruction and suffering.”

Israel has “lined up a fairly substantial legal defence here”, he continued. “And I’m glad they’re putting up a fight because it engages the Genocide Convention in this country, which you rarely hear about it.”

Advocating genocide is a crime that sits under section 80.2D of the Criminal Code Act 1995 (Cth), and it carries up to 7 years imprisonment.

Like all other core international atrocity crimes that appear on the Australian federal law books, this offence carries universal jurisdiction, which means it can be used to prosecute any individuals globally for advocating genocide anywhere.

However, unlike the offences of war crimes, crimes against humanity and genocide contained within division 268 of the Criminal Code, there is no requirement for the federal attorney general to greenlight a case involving a charge of advocating genocide.

This power that the nation’s chief lawmaker has to block prosecutions that involve international atrocity crimes is known as the ‘attorney general’s fiat’.

The August charge sheet lists thirteen points that allegedly reveal Regev engaged in the crime of advocating genocide between 7 October 2023 until 15 April 2024, which include the Australian Israeli diplomat being interviewed by ABC Radio National on 10 October 2023, and this saw him express support for a complete siege on Gaza, or the cutting off of all water, food, fuel and power.

“Australia has the tools, the evidence and the obligation. Now we must act,” Thorpe made clear. “Failure to prosecute Mark Regev for advocating genocide would be a stain on our nation’s conscience.”

“A constitutional obligation to act”

Lawyer Daniel Taylor is working alongside Uncle Robbie on the Regev case. Following the International Criminal Court having issued a global arrest warrant against Benjamin Netanyahu on 21 November, over a litany of war crimes and crimes against humanity, Taylor told P&I that the gravity of the ICC development adds further weight to the case before the Magistrates Court of Victoria.

According to the legal professional, Israel’s defence team is set to argue that Regev should be immune from prosecution in the Australian courts, as his alleged offending was conducted in the capacity of his role as an official Israeli advisor, and under the Foreign States Immunities Act 1985 (Cth), foreign states and agencies are provided an exemption from the jurisdiction of local courts.

Senator Lidia Thorpe wrote to David Bahlen, the deputy director of organised crime and national security at the office of the Commonwealth Director of Public Prosecutions, last Thursday, detailing in a three-page letter, the reasons why the CDPP ought to pick up the case and issue an indictment against Regev’s name charging him with the offence of advocating genocide.

“If the Australian Director of Public Prosecutions prevents the court from hearing this matter, it sends a dangerous message: that the architects and apologists of genocide will continue to be untouchable, their actions shielded by political alliances and power,” wrote the Gunnai, Gunditjmara and Djab Wurrung senator.

Taking matters higher

The Regev case is not the only genocide prosecution that Uncle Robbie is progressing. He has a matter filed against so-called king Charles Windsor III and another case in which he’s attempting to have federal attorney general Mark Dreyfus listed as a respondent. And Thorpe first launched a genocide prosecution in the 1997, which was prior to the enactment of the core atrocity crimes.

The cases against the UK’s king and this nation’s chief lawmaker, however, trigger the AG’s fiat, which means Dreyfus has the ability to block them.

Taylor is no stranger to atrocity crime prosecutions either. The Sydney-based lawyer launched a 2019 crimes against humanity prosecution in respect of then Myanmar state counsellor Aung San Suu Kyi, which failed due to the attorney general’s fiat. This was the same outcome received in respect of an earlier attempt by a different legal team to launch a prosecution against then Sri Lankan PM Mahinda Rajapaksa in 2011.

Uncle Robbie explained earlier this year that the local courts are not the final authority on these matters, as if cases have been repeatedly shopped around the Australian courts and ultimately refused, there is the capacity to take the matter to the ICC, as if it can be shown that domestic authorities cannot deal with such a case, the international court can then take them up.

“Genocide wasn’t even considered a crime not that long ago,” Uncle Robbie further set out. “Now, we have got cases on the issue of genocide.”

“It won’t be long before the eyes of the world turn on Australia. It’s the same type of history as Palestine. It is an illegal occupation and there has been genocidal oppression going on for 254 years,” the Krautungalung elder said in ending.

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