Guerre and Shalom makes no comment about the legitimacy of genocide claims against Australia. We merely note her double standards, her hypocrisy and her impunity, buttressed in domestic and international law, that makes any potential lawsuit impossible to pursue. It seems that “genocide” is a charge that can be levied against one country alone and for all others impunity is the order of the day. Our international correspondent Shlomo Levin reports - Daniel Clarke-Serret (Editor, Guerre and Shalom)
Expressing grave concern that long-standing impunity for international law violations has allowed for the recurrence of grave breaches and serious violations without consequence, and stressing the need to ensure accountability for all violations of international humanitarian law and international human rights law in order to end impunity, ensure the access of victims to justice and effective remedies, deter further violations, protect civilians and promote peace. . .
Resolution adopted by the UN Human Rights Council on 27 March 2026, condemning Israel’s conduct in Gaza
The Claim
An indigenous Australian activist known as Uncle Robbie recently tried to prosecute Britain’s King Charles. King Charles serves as Australia’s head of state, and Robbie says that Australia is perpetuating a continuing genocide against its indigenous people. As evidence, he claims that indigenous Australians currently die younger, suffer worse health problems, and are more likely to be imprisoned or unemployed than other groups.
On September 28th, the Court of Appeal of Australia’s state of Victoria dismissed the case. One might assume the court had decided that whatever injustices Australia’s First Nations currently suffer, there is no basis for attributing personal responsibility to King Charles. That would have been completely reasonable and made perfect sense. But they didn’t. Instead, the court refused to even examine the issue, explaining that there was no need. Under Australian law, when it comes to genocide against First Nations, impunity is almost complete.
Domestic Law
Uncle Robbie invoked three separate legal bases for his challenge: Australian statutory law, common law, and laws of the First Nations. The court dismissed them all.
In 2002, Australia made genocide, along with war crimes and crimes against humanity, punishable by Federal statute. But that came with a catch: prosecutions could only proceed with the written consent of the Attorney-General. And this is no mere oversight: Parliament even considered removing that requirement in 2024–25, but decided not to.
The rationale for this requirement was to prevent Australian courts from being flooded with lawsuits that were either frivolous or invoked universal jurisdiction in ways that were politically problematic. But since atrocity crimes such as genocide are most often committed by the state, this also means that Australian law gives that same state a veto over prosecution of allegations against it. The Attorney General does not even have to provide a reason, and their decision cannot be appealed to any other political body or court. So under Australian statutory law, Uncle Robbie cannot prosecute a head of state such as King Charles, or any other government officials, unless the state itself allows it.
Under Australian common law, criminal prosecutions can be initiated even by private citizens and the Attorney General’s blessing is not needed. But here the court again found a catch. Even though Australia is a party to both the Genocide Convention and the Rome Statute, the court said that Australia’s legislature had never explicitly made these crimes part of the common law. So prosecution on that basis wasn’t allowed.
With common and statutory law closed, Uncle Robbie also stated that genocide was a crime under ‘The laws of our land for over 65,000 years.’ In other words, the conduct of colonial settlers was forbidden by the laws of the First Nations themselves.
But the Court of Appeal ruled that Victorian courts did not have authority to prosecute violations of First Nations’ laws. And due to the very actions that Robbie alleged constituted genocide, First Nations have no parallel court system capable of conducting the kind of criminal prosecution he was seeking.
This leaves an appeal to Australia’s High Court as Robbie’s only remaining option, and it seems extremely unlikely.
International Law
Uncle Robbie intends now to turn to international courts. “The International Criminal Court (ICC) will expose Australia for what it really is — a lying, racist, illegal occupation committing genocide,” he was quoted as saying.
Unfortunately for him, however, at the ICC he will also likely have trouble. There are only three ways the ICC can begin an investigation, and all seem either unlikely or completely closed.
The first is a UN Security Council referral. But that is highly implausible, if for no other reason than because Britain has a veto. Second, a state party can refer a situation to the prosecutor, but Australia is obviously unlikely to ask the ICC to investigate itself. Robbie is hoping that Turkey may do so, but there does not seem to be evidence that will occur. And Australian First Nations are not able to join the ICC and thereby become eligible to make referrals themselves since they are not recognized as a state.
The final method is that the ICC Prosecutor may begin an investigation on their own if they come to possess reliable evidence. This is what Uncle Robbie is evidently hoping, and he plans to send the evidence he has accumulated to the prosecutor. But the odds are very poor.
One reason is that the ICC cannot consider crimes before 2002. So Thorpe would have to show that the harms First Nations are facing are actually due to an ongoing genocide, not merely the lasting effects of genocidal acts committed prior.
A larger issue is gravity. The ICC was designed to prosecute only the most serious of all crimes, and its prosecutor is supposed to consider the scale, nature, manner and impact. With the court already struggling to devote resources to situations involving mass killing and widespread destruction, such as Sudan, Ukraine and Gaza, it seems exceedingly unlikely that the Prosecutor would prioritize Thorpe’s allegations.
There’s one other possibility which seems apt, but Uncle Robbie appears not to have pursued: an ICC charge of aggression. The crime of aggression occurs when a political or military leader orders a use of force ‘in manifest violation of the UN Charter’, such as for an invasion to conquer territory. And this is essentially what Uncle Robbie claims: the British conquered the territory of Australia’s First Nations, and that territory was never ceded from the First Nations to the British via any treaty or agreement. So Australia remains occupied indigenous territory, and continuing occupation is an act of aggression.
But even if that’s true, Robbie faces an insurmountable hurdle. According to the ICC’s Rome Statute, the crime of aggression can only be committed against a state. The governments that negotiated how the ICC prosecutes aggression set it up so attacks against indigenous peoples don’t qualify.
Tolerance of Impunity
We’ve heard so often about Gaza that impunity cannot be tolerated. Not only does impunity deny justice to victims, but it shatters faith in the law itself. And we’re told that future peace is impossible if courts do not first mete out retributive justice.
But when it comes to genocide against First Nations, both Australia’s domestic legal system and the international system seem to feel very comfortable with impunity. We don’t hear anything about how, unless those responsible for the harms inflicted on First Nations are held to legal account, the entire rules-based order is threatened. Nothing about how without justice for First Nations, future peace with them will always be impossible. And we’re never told that if genocide against indigenous peoples isn’t prosecuted, it will establish a culture of impunity that will inevitably lead to more atrocities in the future.
It might make you wonder, why not?
Really enjoyable, informative read.
A terrific article that makes a very important point by Shlomo Levin! Yet another example of why Guerre & Shalom is the world’s intelligent journal!