Uncle Robbie Thorpe’s Genocide Prosecution Against Netanyahu Adviser a Global First

Leading Israeli paper Haaretz recently caught wind of the fact that a private prosecution launched against Australian Israeli citizen Mark Regev by Krautungalung elder Uncle Robbie Thorpe in the Magistrates Court of Victoria appears to be the only such case related to a specific alleged offender to have gotten up that directly involves the now 13-month-long genocide being perpetrated in Gaza.

Regev was acting in the capacity of a senior adviser to Israeli prime minister Benjamin Netanyahu over June 2023 to April 2024, when he perpetrated acts in this country that Thorpe has identified as comprising the offence of advocating genocide and after applying to have the court to lay a charge against Regev’s name in April, a resulting charge sheet dated 14 August 2024 was issued.

Lawyer Daniel Taylor then arranged for the charge sheet to be served upon Regev in Israeli, where the former diplomat lives. And on becoming aware of this serious charge being progressed against one of its own in the Australian court system, the Israeli government directly went on to hire local legal representation to refute the charge, when the case first went before the court on 9 October.

“Speaking in front of the courthouse before the trial began,” Haaretz journalist Rachel Fink reported on 22 October, “Thorpe, who is a Krautungalung elder, told a crowd of supporters, ‘I find it offensive that this country that committed genocide against us is now allowing our country to be used as a base to advocate genocide against Palestinian people’.”

And the significance of this prosecution actually getting up cannot be overstated, as both Thorpe and Taylor have attempted to progress genocide cases in Australian courts in the past to no avail, while more broadly across the planet, legal eagles have been trying to prosecute an official in relation to the Gaza genocide, however, the difficulties involved in such cases have seen all others fail.

Kicking against the fiat

“It is a unique situation, and a win already, in the fact that it is the first time the Genocide Convention will be used, where it has never been done before,” Uncle Robbie told Sydney Criminal Lawyers last week, in relation to the private prosecution he’s launched against Regev. “There is a lot of merit in it.”

“Regev is clearly guilty of advocating and inciting a genocide,” the Krautungalung elder, who’s currently overseeing the ongoing protest action that is Camp Sovereignty on Boonwurrung Country in Melbourne’s Kings Domain. “In this strange way, the case has invoked the law and opened it up for everybody else who has issues of genocide in Australia.”

Thorpe has been running prosecutions in respect of genocide upon this continent since the 1990s. In 1997’s Thorpe versus the Commonwealth of Australia, the High Court found that while the nation had ratified the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, it had not then been enacted into local law, and therefore, the charge could not be laid against the state.

Australia then went on to enact the international crimes of genocide, crimes against humanity and war crimes into Australian federal law, as required on ratifying the Rome Statute of the International Criminal Court in 2002, under division 268 of the Criminal Code Act 1995 (Cth). These laws carry universal jurisdiction and can be laid against any person committing such crimes anywhere.

However, at that time, the Howard government also inserted a law known as the attorney general’s fiat into sections 268.121 and 268.122 of the Criminal Code, which requires the federal attorney general to sign off on any prosecution involving the division 268 international offences, or the case is refused. And once this block is applied to a genocide case, it cannot be reversed.

Regev stands charged with the offence of advocating genocide, contrary to section 80.2D of the Criminal Code, which is a crime that doesn’t require attorney general approval to get off the ground, and it’s also an offence that can be applied to the Gaza genocide, which can be perpetrated here.

“Why have we got an individual who is able to block and prevent Aboriginal people from accessing these laws?” Uncle Robbie questioned last week.

“It is hardly preventing crime. As you know, no one in Australia has ever been punished for the crime of genocide. So, there’s a case there. Australia has obviously failed to prevent genocide.”

A case that sticks

The August charge sheet against Regev issued by the Magistrates Court of Victoria, outlines 13 points that reveal when he was a Netanyahu adviser over the period the 7th of October 2023 to 15th of April 2024, Regev had been advocating for genocide in Gaza. This included appearing in an interview on ABC Radio on 10 October, in which he propagated falsehoods about the October 7th attacks.

The charge sheet states that in the interview with the national broadcaster Regev advocated for the imposition of a complete siege on Gaza that Israeli defence minister Yoav Gallant had called for and involved the cutting of water, food, fuel and power into the walled-in region.

Sydney-based lawyer Daniel Taylor, who’s been working alongside Thorpe on the Regev case, told SCL on Wednesday that this prosecution “has got some serious legs to it”, and this was coming from someone who’s “not new to this field”, as he launched a crimes against humanity prosecution against then Myanmar state counsellor Aung San Suu Kyi in 2019, which was blocked by the then AG.

In response to a series of questions about how the serving of Regev across borders impacts, Taylor explained that the laying of the charge against the Australian-born man in this manner was exactly the same as if police officers had dragged him down to the local station to lay them against his personally.

“We’ve become accustomed to the police or the Director of Public Prosecutions or the attorney general laying the charges, but ultimately all these office bearers are people,” the lawyer explained.

“Essentially, the Israeli government contacted the Australian Embassy in Israel with a diplomatic note indicating that they are going to intervene in the case, as they are seeking to have it quashed on the basis that Mr Regev if an Israeli government officer and should be immune from the prosecution,” he continued. But Taylor further added that the former adviser continues to be an Australian citizen.

Coming home to roost

The next hearing date in the Regev case is set for 10 December. As Thorpe points out the reason its progressing while other cases related to the Gaza genocide have not is that the Howard government didn’t appear to be concerned with the blocking of advocating genocide cases, while Taylor confirms that it’s unlikely Israel will see the case dropped as the crime was locally perpetrated by a citizen.

Uncle Robbie has also been attempting to launch genocide prosecutions against Australian attorney general Mark Dreyfus and so-called king Charles Windsor III but, unsurprisingly, the chief lawmaker did not greenlight these cases, which is a clear indication that the AG’s fiat does impinge upon basic legal principles, including equality before the law.

Senator Lidia Thorpe currently has the Criminal Code Amendment (Genocide, Crimes Against Humanity and War Crimes) Bill 2024 before parliament, which is set to come up for vote in the Senate on 28 November, and if it is successful, it would remove the necessity to seek approval of the attorney general prior to launching a prosecution involving a division 268 Criminal Code offence.

“It is none-too-soon for the change to happen,” Uncle Robbie said in regard to the prospect of Senator Thorpe’s legislation passing. “You can’t call yourself a civilised society if you can’t prevent genocide. So, this is where Australia is. It is only going to get worse.”

“Australia is lawless. It is pariah state. And it is involved in genocide not just here but elsewhere around the world,” the Krautungalung elder said in conclusion.

“The world will see Australia in its true light one day, because you can’t hide the truth. The truth will come out sooner or later.”