Victoria Court of Appeal Rejects Bid to Prosecute King Charles for Genocide

Three judges of Victoria state's Court of Appeal on Monday dismissed an attempt by an Indigenous elder to bring a private prosecution against Britain's King Charles III over the alleged genocide of Aboriginal Australians.

The decision is the third setback for Uncle Robbie Thorpe, a 68-year-old elder of the Krautatungalung people, who first sought to launch proceedings in Melbourne Magistrates' Court in 2023. In Indigenous Australian custom, 'uncle' and 'aunt' are titles of respect for community elders.

Thorpe's case argues that the king — who is also Australia's head of state — along with the Australian government and its institutions, sustains genocide by upholding systems that leave Indigenous people disadvantaged across a range of socioeconomic measures. Official statistics show Indigenous Australians, about 4% of the population, die younger, fare worse on health outcomes and are more likely to be imprisoned or unemployed than other Australians.

With the state appeal exhausted, Thorpe's remaining domestic option is to seek permission to appeal to the High Court of Australia, which grants leave in only about 10% of applications. Speaking after the ruling, Thorpe said he did not expect a fair hearing in Australia and indicated he would take his allegations to the International Criminal Court in the Netherlands once local avenues are closed.

"The International Criminal Court will expose Australia for what it really is — a lying, racist, illegal occupation committing genocide," he said.

The legal path is complicated by the monarch's immunity. The British sovereign is shielded from all criminal and civil liability in the United Kingdom, a protection broader than that enjoyed by a U.S. president because it covers personal acts outside official power, according to Sydney University constitutional lawyer Anne Twomey. That common law immunity has likely been inherited by Australia, a former British colony that still recognises the British monarch as its head of state, though Twomey said she is unaware of it ever being tested in Australian courts.

Parliaments in Britain and Australia could legislate to change the immunity, but the monarch is also head of state of several other countries, including Canada and New Zealand. Sovereign immunity is further recognised under customary international law and Australian statutes such as the Foreign States Immunities Act 1985 and the Diplomatic Privileges and Immunities Act 1967.

The ICC does not recognise head of state immunity and can prosecute genocide charges. However, an individual cannot initiate a private prosecution there as Thorpe attempted in Australia. While the U.N. Security Council can refer a case, Britain would veto any move against King Charles, said Don Rothwell, an international lawyer at the Australian National University. The usual route, he explained, is for an individual to present evidence to the ICC's Office of the Prosecutor, as occurred in cases against Russian President Vladimir Putin and Israeli Prime Minister Benjamin Netanyahu.

"An individual cannot commence a prosecution. If they've exhausted all of their options under Australian law, the best that they can do is seek to provide evidence that they believe constitutes the crime of genocide. It's then up to the International Criminal Court to determine whether they would seek to prosecute," Rothwell said.