The Kosovo Albanians I got to know while working on a book on nationalism in the early 1990s had a way of bidding farewell that I shall never forget. "Next time," they would say, "may we meet in free and independent Kosovo." Most of them, I learned, were not interested in actually changing the borders of their province; for them, self-determination meant choosing their own government and gaining some measure of independence from Serbia. They talked about being part of a free Europe, where frontiers would be fluid and permeable, and the rights of minorities would be protected. 

All of this seemed like a fantasy as the fighting began in the summer of 1998. Yugoslav President Slobodan Milosevic believes in borders--and believes in going to any lengths to retain them. Specifically, he believes in the use of force--including mass expulsion and paramilitary hit squads--to keep Kosovo within Serbia, within Yugoslavia. The international community also believes in borders--and has questioned the wisdom and legality of crossing them to settle internal disputes in a sovereign state. The legal debate concerns a tension between two competing principles: respecting the territorial integrity of states and guaranteeing universal human rights and self-determination. In fact, it is a debate about nothing less than the very purpose of the United Nations. The international community's response to the crisis in Kosovo provides a test case of these competing views. 

Those who cling to existing borders view the fundamental purpose of the U.N. as ensuring global security by maintaining the status quo. Others--and I fall firmly into this group--contend that to emphasize security without regard for human rights sacrifices the core purpose of the organization--namely the promotion of peaceful and just societies. 

Two weeks ago, when the American Society for International Law met in Washington, that conflict came to the fore in a series of heated arguments. At face value, the words of the U.N. Charter, the most fundamental document of international law, appear to favor anti- interventionists, who believe that intervention is susceptible to misuse and that what a state does within its own borders is largely its own business. Article 2(4) of the charter, which was adopted in 1945, clearly declares that states "shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state . . . ." Exceptions exist where a state acts in self-defense or where the U.N. Security Council finds a "threat to the peace, a breach of peace or act of aggression" and authorizes the use of force. 

In the case of Kosovo, each of these exceptions is problematic. The self-defense exception has been read narrowly. States may use force against other states only to defend themselves and their allies from actual attack (and not from mere anticipation of attack). The neighboring states of Albania and Macedonia have not been attacked, and the self-proclaimed Albanian Kosovo was never recognized as a state. Thus, the self-defense exception would have to be stretched to apply to Kosovo. 

Nor does the Security Council authorization exception apply. Three U.N. Security Council resolutions on Kosovo, which Serbia has flagrantly disregarded, found the existence of a threat to the peace and enjoined Serbia to take certain actions, such as reducing troops. But it would be a strain to contend that those resolutions authorize the use of force. What's more, at the bidding of Russia and China, the Security Council recently and explicitly rejected the use of force. 

Anti-interventionists further support their argument by pointing out that another article of the U.N. Charter forbids the U.N. and individual states from intervening in "matters which are essentially within the domestic jurisdiction of any state." But this article also supports the notion of humanitarian intervention. Since at least 1945 and the post-World War II Nuremberg trials, gross violations of fundamental human rights are not considered solely within the domestic jurisdiction of any state but matters of concern to the entire international community. 

Read on a little further in the charter, and you will find Articles 55 and 56, which implore "all Members [to] pledge themselves to take joint and separate action" to promote "universal respect for, and observance of, human rights and fundamental freedoms for all," suggesting that the U.N. Charter not only permits intervention on humanitarian grounds, but in some cases requires it. 

It's not that humanitarian intervention is a new concept. (Hugo Grotius, the father of international law, recognized the principle as long ago as the 17th century). The broad acceptance of human rights principles is a recent phenomenon, however. And as human rights have gained acceptance, the notion of state sovereignty has lost ground: Where a state is incapable of protecting human rights or is itself the perpetrator of abuses, human rights cannot be guaranteed without eroding the ancient principle of state sovereignty. 

One reason for many international lawyers' caution about applauding the doctrine of humanitarian intervention is that, in the colonial and Cold War periods, it could be misused by strong states as a pretext for vigilante activity and for the occupation of weaker and politically disobedient countries (some people would include the U.S. interventions in Grenada in 1983 and in Panama in 1989 as examples). However, the post-Cold War era provides us with an opportunity to salvage the doctrine. Drawing from the U.N. Charter itself, U.N. Security Council resolutions and other international documents and decisions, we need to identify workable criteria that limit the scope of humanitarian intervention so as to respect borders. Where human rights abuses target a particular racial, ethnic or religious group, the argument for intervention is strong. 

Meaningful humanitarian intervention does not threaten world order. Rather, it vindicates the fundamental principles for which the United Nations was created. 

Bajram Kelmendi, an ethnic Albanian from Pristina and one of Europe's leading human rights lawyers, used to say to me, "We may not win, but the law is on our side." Two weeks ago, he and his two sons were murdered by a Serbian hit squad. Their deaths underline a need for a human rights vision that transcends borders.