Law limits forceful self-defense.

Byline: EDWARD FADELEY For The Register-Guard

WHAT IS THE INTERNATIONAL LAW concerning a pre-emptive attack? What does international law say about a nation's policy of "Hitting them before they hit us?"

This question is currently phrased in terms of self-defense against a "threat." The law justifying the use of violent force in self-defense has been well developed over centuries of human experience.

National Security Adviser Condoleeza Rice says the current "threat" from Iraq is like the Cuban missile crisis of the 1960s. In that crisis, missile bases were built in a country 90 miles from our shores. Atomic missiles were headed to that country on ships that were only a few hours away from Cuba.

The response was to blockade and board the cargo ships carrying the missiles. The United States did not bomb Havana or demand a regime change. The United Nations was used as a forum where the United States could and did inform the world of the nature of the threat, with actual pictures of the missile launch sites. In short, the Cuban missile crisis demonstrated a measured, limited response designed to prevent a real threat from growing or becoming capable of harming the United States.

The precedent of the Cuban missile crisis does not establish a law justifying a pre-emptive attack. Besides, the objective of disarming the threat is already supported by U.N. resolutions relating to Iraq.

Nor is the argument for a pre-emptive attack supported by any law or by our policy toward other nations, such as in disputes between nuclear powers who actually voice threats against their neighbors.

An example is the dispute between Pakistan and India, where no pre-emptive attack was supported. Both threatened to harm the international community by their use of nuclear weapons against each other. Instead of regime changes or pre-emptive strikes, we urged both nations to cool it.

Another argument used to support a pre-emptive attack is that the United States should get rid of a dictator and replace him as a means of bringing freedom and democracy to the people of Iraq. That argument would equally apply to our ally, Pakistan, and its current dictatorial government, but we don't apply it there. To qualify as a "law," and to qualify as a law justifying a pre-emptive strike, uniform coverage and impartial application would be needed.

We must look elsewhere for a model of law.

Most civilized states and nations use specific principles to govern the exercise of their law of self-defense. Those principles provide guidance to determine when self-defense involving violence that may kill or has the intent to kill is justified, and where causing the death of another is excused.

The Oregon Legislature codified such a law in the 1970s after a four-year study of criminal law in our country and our state. What are the principles of self-defense and justifiable homicide that Oregon enacted in law?

One principle is that the threat must be real - or actual and imminent - as judged by a reasonable person confronted by the crisis or threat.

Another principle is that the force used in self-defense, or in defense of third persons, must be only that degree of force reasonably believed to be necessary to stop the real and imminent threat to oneself or to the lives of others. Deadly force against another is not justified unless the person killed was using unlawful and deadly force themselves, or was about to use unlawful, deadly physical force against a person or persons. The requirements that the threat be real and also imminent continue to apply.

There is another principle of justifiable homicide directly involved in the idea of a pre-emptive attack: "[A] person is not justified in using physical force upon another person if: (1) With intent to cause physical injury or death to another person, the person provokes the use of physical force by that person; or (2) The person is the initial aggressor..." (Oregon Revised Statutes, 161.215).

In other words, the initial aggressor cannot claim, under that law, to be justified in using physical force against others.

That lack of any right to self-defense cannot be corrected unless the initial aggressor actually withdraws from the encounter, effectively communicates that intent to withdraw and the other combatant nonetheless continues the fight with use of unlawful physical force.

Edward Fadeley of Eugene is a former justice of the Oregon Supreme Court, a former state legislator, a former Naval Reserve officer's school instructor in international law and a member of the international law section of the American Bar Association.