King Charles III
Indigenous elder to pursue genocide allegations against King Charles at the ICC Northern Ireland Office/Wikimedia Commons

An Indigenous elder who has repeatedly tried to bring a private genocide prosecution against King Charles III in Australia says he will now take his allegations to the International Criminal Court (ICC) in The Hague.

Victoria's Court of Appeal on Monday rejected Robbie Thorpe's application to appeal, concluding that his proposed charges did not disclose an offence known to Victorian law. The ruling marked his third unsuccessful attempt to advance the case since he began pursuing it in 2023.

Mr Thorpe, 68, an elder of the Krautatungalung people, has said he intends to go to the ICC in the Netherlands after exhausting his options in Australia. His one remaining domestic avenue is to seek permission to appeal to the High Court of Australia.

The courts have not ruled on whether the genocide allegations are true. The Court of Appeal considered only whether the proposed charges were recognised in law and whether an appeal had a real prospect of success.

What Mr Thorpe Alleges Against The King

His proposed prosecution alleged that the King, along with the Australian government and its institutions, was perpetuating genocide against Aboriginal and Torres Strait Islander peoples through systems that disadvantage Indigenous Australians.

The alleged offences were described as continuing acts of genocide since 28 September 2022, under common law, federal law on genocide and First Peoples' sovereign laws.

The proposed prosecution was first rejected by a senior registrar of the Magistrates' Court in Melbourne. The Supreme Court upheld that decision before Monday's ruling.

Official statistics show significant disparities between Indigenous and non-Indigenous Australians in health, life expectancy, unemployment and imprisonment. Mr Thorpe argues that such disparities meet the legal definition of genocide. No court has made such a finding.

Australia's Criminal Code defines genocide as specified acts committed with the intent to destroy, in whole or in part, a protected national, ethnic, racial or religious group.

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What The Law Says About The King

Charles is King of the United Kingdom and, separately in Australia's constitutional system, King of Australia and the country's head of state.

Anne Twomey, a professor of constitutional law at the University of Sydney, has said the British monarch has common-law immunity from criminal and civil liability in the UK, and that this has likely been inherited by Australia. She said she was unaware of the issue having been tested in an Australian court.

Limits Of The International Criminal Court

Mr Thorpe cannot bring a prosecution at the ICC himself. International law expert Don Rothwell said: 'An individual cannot commence a prosecution.'

He said that once someone has exhausted their options under Australian law, the best they can do is provide evidence they believe constitutes genocide. It is then for the ICC to decide whether to seek a prosecution.

The ICC's legal framework does not exempt a person from criminal responsibility solely because they are a serving head of state or hold another official position. That does not mean a case would be opened.

The court's prosecutor must first decide whether the alleged conduct falls within the ICC's jurisdiction and whether the requirements for an investigation are met. The prosecutor's office assesses factors including jurisdiction, evidence, gravity, complementarity and the interests of justice.

Mr Thorpe can therefore give information and evidence to the ICC prosecutor, but he cannot personally start a prosecution or compel the court to open a case.

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