The push for human rights could hurt Americans

The human rights movement is being expanded in ways that may come back to strike at Americans overseas, mainly through erosion of the principle of territorial jurisdiction.

For hundreds of years, it has been universally recognized that a country's laws do not reach beyond its borders. (Trial in the United States of persons accused of bombing American embassies in Africa does not violate this principle; the embassies are considered American territory.) In the late 19th and early 20th centuries, the US and several European powers insisted on extraterritoriality - that is, the application of foreign laws - in parts of China, much to the resentment of the Chinese. That privilege was abandoned, but now extraterritoriality is being revived in the name of human rights.

The best known case is that of Gen. Augusto Pinochet, former president of Chile, whose extradition from England was demanded by a Spanish judge for a crime allegedly committed in Chile. It was granted by British courts, but suspended because of General Pinochet's failing health.

A Belgian law allows prosecution in Belgium of foreign officials for human rights violations committed outside Belgium. Several complaints have been filed against Israeli Prime Minister Ariel Sharon, charging him with responsibility for the murder of hundreds of Palestinians by Christian militiamen in Lebanon in 1982 while he was defense minister. A Belgian court is now investigating, and Israel has retained a Belgian lawyer to defend Mr. Sharon.

There is also an agreement to establish an International Criminal Court with jurisdiction over genocide, crimes against humanity, war crimes, and aggression. (Note that none of these except genocide is well defined.) The court is not yet operating because only 37 (not including the US) of the required 60 countries have ratified its charter. Meanwhile, special United Nations courts have been given jurisdiction over the brutality accompanying the breakup of Yugoslavia, ethnic hatreds in Uganda and Rwanda, and turmoil in Sierra Leone. The way is open for other governments to seek extradition of an American alleged to have murdered or raped one of their citizens in the US, or the extradition of a police officer suspected of mistreating a foreigner in custody. It is unlikely that extradition would be granted, but the threat of asking for it somewhere else might inhibit foreign travel.

The human rights violations involved in these efforts to establish international jurisdiction have all been especially repugnant cases of murder and/or rape, but there is no assurance the efforts will not be broadened - to include torture, for example - raising new questions of definition. Torture might be anything from roughing up a prisoner during arrest to prolonged infliction of severe pain.

At least partly in response to demands of special interest groups, Congress has expanded the list of human rights to include, among others, religion and free elections. There is no argument about the desirability of both these goals, but both (or lack of them) have frequently led to violence and war. It is a field we ought to enter only after sober consideration.

As the United States is the country with the most international interests, its citizens are the most exposed to changes in international legal norms. It is Americans who are most endangered by efforts of third countries to assert jurisdiction.

We are not making it easier, as our own courts, with congressional support, assert their own jurisdiction over acts abroad. Five Chinese are suing former Prime Minister Li Peng in an American court for his role in suppressing the 1989 demonstrations in Tiananmen Square. President Robert Mugabe of Zimbabwe is the defendant in a civil suit seeking $400 million in damages for his part in killings, torture, and terrorism. There are other examples. Some have already resulted in huge verdicts, unlikely ever to be collected.

The US made human rights a serious part of its foreign policy because of concern about police brutality in Brazil in the 1960s and in Chile in the '70s. Protection against torture can be attained, perhaps, through diplomatic pressure. Such pressure does not suffice when it comes to broader human rights goals, some of which may require means that are themselves of questionable legality. This may make us feel better, but it is not likely to result in improved human rights worldwide. And it might lead to trouble for Americans abroad.

Pat Holt is former chief of staff of the Senate Foreign Relations Committee.