State Immunity and Universal Jurisdiction in International Law

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International relations
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a.
The customary international law provides immunity for ministers, heads of government
and heads of state against any criminal proceedings. Thus, they cannot be arrested in any foreign
country and also, court orders cannot serve them. In Australia, the same happens that heads of
statutes and government cannot be detained arrested or served with a court proceeding even if
they are from foreign countries. However, the Australian courts can hear severe international
cases for crimes like genocide irrespective of where they took place (Hezel, 2013, 99).
The principle of Universal Jurisdiction has given the courts this mandate to hear any form
of the allegation made against any individual in serious crimes such as genocide, a crime against
humanity, and war crimes. Under this principle many people have been arrested in foreign
countries for committing serious crimes in their countries. For instance, Augusto, a former Chile
dictator, got arrested in Australia but he could not face trial. Thus, he was under house arrest for
some time and taken for prosecution in the International Criminal Court (Foreign States
Immunities Act 1985). Other similar cases which have been judged in foreign territories include
the case of Gaddaffi, Petro Timor v Cth of Australia 2003, and Kuwait Airways vs Iraqi
Airways.
It was under the regime of General Kyi Su that all the crimes happened. Also, his son was
in the military that molested the BV Malik people (Caplan, 2003, 77). As the head of state, Kyi
Su had the responsibility of averting any war. The UN introduced the international criminal law
which is universally applicable to all the member states. When the violence was taking place, the
general only praised the police and the forces on the excellent work they did. In the year 1990,
under General Kyi Sue’s presidency, the laws were changed to die the BV citizens the right two

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citizenship (Diplomatic Privileges and Immunities Act 1967). When the riots started, the people
were protesting the new rules that denied the Tulistan people some of their fundamental rights.
There were several deaths reported during this time that Kyi was the general. Also, the general
had been silent as people lost their lives (De Sena, 2005, 112).
According to the Foreign Immunities Act 1985 (Cth), any state is immune from the Australian
courts’ jurisdiction except;
1. If the states had given a submission to the courts’ jurisdiction
2. When the proceedings involve a commercial transaction.
When General Kyi Su came to Australia, with his son, for medical treatment, he is not a
head of state. Under the International Law State Immunity, the former resident should be arrested
in Australia. Some of the crimes committed by the general and his son included genocide, the
crime against humanity, as well as other war crimes. State immunity provides that a sitting
general is immune to arrest, prosecution, and detention since he protects the interests of the state
(Bankers, 2005, 55). However, it becomes hard to make a ruling in some cases where the head
violates human rights. Many leaders of countries who have enjoyed immunity are those who
have committed several crimes. However, the international customary law provides some
exemptions for some international crimes. In this matter, as long as the complainant can proof by
providing evidence against the general and his son, the Australian courts have the jurisdiction to
judge and arrest them.
Under the international law, the country has the mandate to prosecute former generals for
crimes they committed while serving as heads o states. The state immunity is only enjoyed when
one is in office. Thus, the general and his son should be arrested (McGregor, 2006, 323).