In the study of Procedural Law, at the dawn of the twenty-first century, we encounter new concepts deriving from globalization of law as well as global interests of countries and societies, increasingly interrelated and connected. Therefore, it is appropriate that we analyze the concept of "universal jurisdiction" that has gained greater force as a result of daily occurrences in the lives of nations, particularly due to implications for individual rights of persons. The courts are increasingly inclined to issue sentences that reflect consideration for the rights of men, and respect for life as the most basic of human rights. Constitutions recognize life as the most fundamental of rights and the duty of States to take actions designed to protect life from aggression. (Supreme Court, 30 August 2001 y C. de Santiago, 28 May 2001, "Revista de Derecho y Jurisprudencia", Tomo XCVIII, Secci—n Quinta, page 199, Editorial Juridica de Chile.)

Two factors are particularly relevant to the evolution and increasing acceptance of universal jurisdiction in the community of nations and persons. First, we have seen mounting consensus that impunity is inadmissible in regards to atrocities committed in all latitudes of the globe. The widespread coverage of such acts in the mass communications media has contributed to the growth of this trend. Second, a latent international memory or conscience fosters acceptance of common law norms that condemn such conduct in any part of the world. In regards to impunity, in the more than 50 years since the end of the Second World War, most perpetrators of countless human rights violations have not been subject to justice. National governmental officials have been unwilling or incapable of bringing these crimes to courts of law. In any case, in the past, there was no international tribunal to turn to. The relation between impunity and the persistence of human rights violations is more than clear. Impunity permits human rights violations to become blueprints for abuse. Impunity also results in a disregard for law, fostering ever more blatant human rights violations. "We have seen cyclical violence that flares and is extinguished without ever going to justice. Rights, rage and anguish of victims are simply been ignored. Therefore, hatred is on the rise... " (Richard Goldstone, Judge of the South Africa Constitutional Court, and Prosecuter for the Internacional Criminal Tribunal for the former Yugoslavia.)

International Criminal Law has gained a greater stronghold (Všlkerstrafrecht). The term was first coined by Beling (Jesche, k/Weigend, Parte General ,1996, note 4, page 119, cited by Kai Ambos.). According to Kai Ambos ("La Parte General del Derecho Panel Internacional", page 34, "Fundaci—n Konrad Adenauer" Oficina Montevideo, Uruguay, Spanish translation of the abridged and updated "Der Allgemeine Teil des Všlkerstrafrechts: AnsŠtze einer Dogmatisierung", Duncker und Humbolt, Berlin, Germany, 2002 and 2004.) it refers to "the set of international law norms that set forth legal and penal consequences", and submits individual conduct to sanctions under international law, in the context of direct penal responsibility. This is notwithstanding expanded competency following ratification of the Statutes of Rome of the International Penal Court. (International treaty adopted in Rome in 1998 under the auspices of the United Nations gave rise to the International Criminal Court. Chile subscribed but has not ratified the treaty.), extending it to other areas adjacent to criminal law: punishment, enforcement of judgment, international cooperation and legal assistance. It also encompasses new concepts in criminal procedure and issues of judicial organization. "Thus we find not only a new and autonomous international legal-criminal framework, but also an expanded framework." International criminal law can arise from the ratification of multilateral treaties or through the creation of common law or general principles of law.

Universal jurisdiction may be traced to 1945, when the Allied nations exercised universal jurisdiction in crimes against humanity and war crimes, when such acts were committed during an armed conflict but not in their own territory and did not effect their own citizens or residents.
"The post-war period saw the development of an area of international public law that became increasingly important: international human rights law. Internationalization of human rights was not a minor phenomenon; rather it represented a change of paradigm that bore much more weight than the judicial transformations of the twentieth century." (Zaffaroni, Eugenio R., Alejandro Aliaga y Alejandro Slokar, "Derecho Penal Parte General", p‡gina 194, Editorial Ediar, Buenos Aires, 2000) However, during the half-century that transpired since then, only a small number of States incorporated such crimes as part of domestic law. Israel, Australia, Canada and the United Kingdom exercised the principle at one time or another in crimes committed during the war. International human rights law and its direct implications for the rights of victims and perpetrators is directly related to international criminal law. However, the two must not be confused; just as international protection of human rights must not be confused with criminal justice. (Interamerican Human Rights Court, Caso Cantoral Benavides, August 18, 2000, "Revista de Derecho y Jurisprudencia", Tomo XCVII, Seccion Sexta, Editorial Juridica de Chile.)

Traditionally, courts of a State have competence only over persons who commit a crime within national borders (territorial jurisdiction); but international law has begun to recognize that courts may exercise certain forms of extraterritorial jurisdiction. These may include crimes committed beyond national borders by a citizen (personal jurisdiction) of the country, crimes that affect basic interests of a State in terms of security (jurisdiction through the principle of protection), and crimes committed against citizens of the State (jurisdiction over the passive individual).

High sea piracy, airline hijacking and international terrorism are acts that foster recognition that the courts of a given State may exercise jurisdiction, in name of the international community, over certain serious crimes that threaten international of law. All States in which individuals are suspected of having committed such crimes may bring them to trial. In March 2004, the Spanish Supreme Court overturned a ruling from the Audiencia Nacional criminal law bench to permit a Chilean retired general and a former Defense Minister to stand trial in Spain for crimes of genocide, terrorism and torture committed in Chile against Spanish diplomat Carmelo Soria, murdered in Santiago in 1976.

Argentine military officer Adolfo Francisco Scilingo Manzorro was arrested in Spain and accused of crimes against humanity during the military dictatorship of Argentina. In April 2005, Scilingo was sentenced as author of crimes against humanity, constituted by his responsibility in 30 perfidious murders, illegal arrests, and torture. The sentence is founded on the principle of universal criminal jurisdiction, in the sense that jurisdictional borders are non-existent when it comes to crimes against humanity. The ruling clearly establishes jurisdiction of European civil courts to try this type of crime.

The Geneva Conventions of 1949 protect victims of armed conflicts and have achieved acceptance throughout the world. The Geneva Conventions demand that each State party to the treaty seek and apprehend individuals who commit or order others to commit serious human rights violations. Suspects must be brought to trial in national courts, extradited to another State, or delivered to an international criminal court. The Conventions call for prosecution of individuals who, during international armed conflicts, commit crimes against persons protected by the treaty such as shipwrecked military, naval personnel, wounded soldiers, civilians and prisoners of war. The Geneva Conventions also condemn criminal actions such as first degree murder, torture or inhumane treatment, including biological experiments, and deliberately causing suffering or serious physical or psychological harm. Other crimes include the destruction and the illicit or arbitrary large-scale expropriation of property not justifiable by military needs. Forcing a prisoner of war or inhabitant of an occupied territory to serve in hostile armed forces, deliberately depriving a prisoner of war or inhabitant of an occupied territory of the right to a fair trial in civilian courts, the taking of hostages and deportation or illegal transfer or confinement of an inhabitant of an occupied territory are crimes as well.

Today many nations recognize that international common law doctrine as well as general principles of law, provide States with grounds to exercise universal jurisdiction over individuals charged with committed acts of genocide, crimes against humanity, and other war crimes beyond the serious violations outlawed by the Geneva Conventions. Universal jurisdiction is also applicable in war crimes committed in non international conflicts, summary executions, forced disappearances, and torture. Increasingly, we come to understand that States not only have authority to exercise universal jurisdiction in such crimes, but also, the duty to do so or to extradite perpetrators to States that are capable of exercising that jurisdiction. The Convention against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment adopted December 10, 1984, demands that States party to the treaty try these individuals, who are found within their national territory, their own courts or else extradite them to a State where they may be brought to trial. The Convention establishes this obligation under the concept of Universal Jurisdiction, under clauses b and c and number 1 of article 5.

During many years, few countries granted courts universal jurisdiction on the basis of domestic law. Later, several States, including most countries of Latin America, passed laws that stipulated the exercise of universal jurisdiction over certain crimes set forth by international law committees after the Second World War. Germany, Austria, Belgium, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Denmark, Ecuador, El Salvador, Spain, France, Guatemala, Honduras, Mexico, Nicaragua, Norway, Panama, Peru, Switzerland, Uruguay and Venezuela all have universal jurisdiction statutes. However, few have ever exercised this jurisdiction.

International criminal law has drawn primarily from common law doctrine, notably; in relation to certain types of crimes not on the books but which are founded on international custom. This would seem to be a flagrant violation of the principle of nullum crimen. However, treaties such as the 1966 International Pact on Civil and Political Rights in its article 15, the 1948 Universal Declaration of Rights of Man in article 11, and the European Convention on Human Rights, in article 7, establish that a conduct may be imputable "under general principles of law recognized by the international community." This situation has lost ground since the codification of crimes and description of imputable conduct, comprised by the so-called "elements of crimes," largely in the context of the International Criminal Court.

A landmark development in this respect was the creation of International Criminal Courts for the former Yugoslavia and Rwanda in 1993 and 1994, respectively. Since then, States have begun to comply with the obligations set forth by international law by enacting laws that permit their courts to exercise universal jurisdiction over serious crimes, thus fulfilling the hopes generated 50 years ago by the Nuremberg International Military Tribunal. In Germany, Austria, Denmark, the Netherlands, Switzerland, and Sweden courts have exercised jurisdiction to investigate and initiate trials for genocide, crimes against humanity or war crimes committed in Rwanda in 1994, in response to UN Security Council Resolution 978. That Resolution obliges States to arrest and imprison, as set forth in domestic law and international law, individuals who are sought by the Rwanda Tribunal or by national officials individuals who are discovered within their territory and for whom there is probable cause of responsibility in actions that fall under the competence of that court. Italy and Switzerland have investigated cases of torture, summary execution, and forced disappearances occurred in Argentina in the 1970s and 1980s. Spain, Belgium, France and Switzerland have requested the extradition from United Kingdom of former Chilean Chief of State, who is charged with such crimes. On March 24, 1999, the House of Lords ruled that he did not have procedural immunity from charges of torture and conspiracy to commit torture, and the Home Secretary allowed British courts to review the Spanish petition for extradition.

The situation in Latin America has been different. Nations have resisted change and aperture to internationalization of certain aspects of justice. This attitude may stem perhaps from an ancestral and territorial nationalism and an excessive zeal regarding each nationality and territory, so frequently the motive for neighborly aggression. Judicial maturity made possible that countries with very different histories and cultures such as France, Germany, England, Greece and Turkey came together to form the European Community. That judicial maturity is absent in our countries of Latin America.

We must foster processes of change in legal thinking and value the principle of preeminence of human rights, through debate and understanding of international human rights treaties. This requires not just a change in law. Rather, our continent requires cultural transformation that engenders modernization and human development without biases or complexes. Professor Zaffaroni, in explaining the resistance to change so pervasive in our countries, states that "in Latin America a certain doctrinaire sector is intent upon minimizing the importance of international human rights law. This is a sector influenced by a formalistic legal education or authors associated with political positions or groups responsible for most grave disregard of legal protection of human dignity."

The international community must work to suppress existing differences in international protection. Legislative bodies of States that are parties to the Statutes of Rome must enact regulations that allow countries to turn over to the Court persons accused of such crimes and compel national officials to cooperate. Once countries ratify these treaties, they must take measures to ensure that their courts can effectively respond and complement the International Criminal Court. To achieve this, not only must they define the crimes that come under competency of the Court as crimes codified in domestic law to come in compliance with the Statutes of Rome. They must also vest national courts with universal jurisdiction over serious crimes under international law. Such measures strengthen an integral system of investigation and trial, thereby contributing to the reduction and eventually elimination of islands of protection for individuals who commit the worst crimes in the world. International Criminal Court jurisdiction is corrective and substitutive or supplementary to the jurisdiction of States party to the Statutes, and in some cases may review rulings issued by national courts. The International Criminal Court has characteristics of an extra-national, permanent court and exercises jurisdiction over individuals.

The influence of universal jurisdiction in domestic Chilean law has already left its mark on our statutes. The final clause of article 250 of the Code of Criminal Procedure, which refers to the permanent dismissal a judge may order, states that "the judge shall not dictate permanent dismissal in crimes that, under international treaties ratified Chile and in effect, are not subject to statutes of limitation nor amnesty, with exception of cases that come under numbers 1 and 2 of article 93 of the Criminal Code."

The Statutes of Rome establish the inapplicability of statutes of limitation and amnesty laws. As a party to that treaty, and in light of article 18 of the Vienna Convention of 1969 on the Treaty Law, Chile is obligated not to frustrate the spirit and purpose of the treaty before it comes into effect. The failure to prosecute the various situations described in the International Criminal Court Statute, specifically in articles 27, 28 and 33, among others, would severely damage the Treaty. Consequently, the final article cited must be fully enforced in regards to genocide, war crimes and crimes against humanity.

Likewise, when the Convention on the Forced Disappearance of Persons codifies this crime as "international," it has juridical consequences for the responsibilities of individual and States. Such responsibilities include the inadmissibility of the due obedience as extenuating factor, the inapplicability of statutes of limitation on penal action and other. Moreover, the "Convention against Torture," as ratified by Chile, contains norms that internationalize the prosecution of torturers. Its article 4 establishes that acts of torture, any attempt to commit torture as well as complicity or participation in torture, must be codified and punished by domestic legislation. Clause 1 of the following article adds that all State Parties shall take actions as necessary to incorporate within their jurisdiction the crimes described in article 4, indicating the specific cases that correspond and come under letter c of article 5. Thus, the Convention distances itself from the idea of national jurisdiction as related to territory and mandating the State to exercise extra national and extra territorial jurisdiction, "when the victim is a citizen of that State and is considered appropriate."