Let me begin by thanking our host, the Swedish Government, and express my pleasure to join such a distinguished panel of colleagues. I attended the second of these conferences with Ambassador Stu Eisenstat while I was still in office in January 2000 and recall well the dynamic and productive character of these discussions, as well as the frigid weather. 

I want to preface my remarks by noting that there was some discussion yesterday pointing to the awkwardness of focusing only on genocide or rather ambitious redefinitions of the crime in order to capture the mass killings and destruction that we really intend to examine. For some time now, I have published and advocated that when dealing with the crimes of greatest interest to the international criminal tribunals, including the International Criminal Court, we need a new term to accurately establish the boundaries of what we are talking about. I use the term, “atrocity crimes,” which include genocide, crimes against humanity, and serious war crimes when committed on a scale and with the kind of planning that prosecutors and judges in the international criminal tribunals and often in the hybrid international/domestic courts require to establish jurisdiction. I call the law associated with atrocity crimes simply “atrocity law.” 

None of the established fields of international humanitarian law, international criminal law, law of war, or human rights law actually work if one is concerned about applying a comprehensive but focused terminology. Use of the terms “atrocity crimes” and “atrocity law” permits a much more accurate and focused discussion and I always find resonates better with policy-makers and the general public who, in the end, we must be speaking to in order to advance this issue. 

The engagement of the United Nations system on the challenges of conflict prevention and the responsibility to protect has by now been extensive and very well documented. 

The Report on the Responsibility to Protect offers a broad overview of UN engagement. I also point in particular to the report of the Secretary-General on the Prevention of Armed Conflict in 2001 (S/2001/574) and the follow-on UN Security Council Resolution 1366 of August 30, 2001. On December 9, 2003, UN Under-Secretary-General Jan Egeland delivered an excellent report to the Security Council about a wide range of issues he believes must be addressed to enhance the protection of humanitarian personnel and of civilians in armed conflict. The General Assembly acted on the prevention of armed conflict last summer (A/RES/57/337). 

Similar resolutions, inquiries, and reports emanate from a wide cross section of UN bodies. The option paper drafted by Gregory Stanton for this conference and found on page 27 of the options papers package is an excellent overview of systemic problems that persist within the U.N. system. 

But I have no time to report on the past in this presentation. Rather, I want to stress two primary issues and then briefly several initiatives. First, most of the work in this area has focused on how to act quickly enough to prevent atrocities or how to use a wide range of diplomatic, economic, and military options to seek the end of atrocities that are erupting in real time, including our focus on 1994 and Srebrenica 1995. But there is remarkably less discussion about how the United Nations can act effectively to end what I call “recurring atrocities” that have continued for years, sometimes even decades. Examples abound: , central Africa, West Africa, apartheid in South Africa, Iraq, Afghanisatn, Cambodia, the Balkans, and Chechnya. The United Nations slips rather easily into perpetual motion exercises that show activity but oddly co-exist with recurring atrocities. After a while, the idea of using military force to end recurring atrocities in a particular country or region becomes increasingly unrealistic because the political support within the United Nations, not to mention capitals of countries that could contribute to a military force, has evaporated. The perverse reality is that the more prolonged the assault on civilian populations, the harder it is to galvanize an effective intervention to stop it. 

For example, why is it that the Lord’s Resistance Army continues to assault the children of with atrocity crimes and use the territory of Sudan for sanctuary? Why, indeed, does southern remain a major atrocity zone after all these years of negotiations? Why are the eastern regions of the Democratic Republic of Congo still the scene of one of the worst humanitarian catastrophes of our generation, despite the presence of a UN peacekeeping force and ever-hopeful signs of political progress? Why indeed does remain so divorced from any degree of credible accountability within the Russian legal system and from any proper implementation of atrocity law? 

Imagine if the Bush administration had approached the United Nations in the fall of 2002 with a solid case against Saddam Hussein, not about weapons of mass destruction which have proven so illusive to discover, but about decades of atrocities under his leadership, crimes which continued at the time? Would member state governments and the Secretariat have responded dynamically to that challenge, or just concluded that most of the crimes had occurred too far in the past to justify military action to put an end to a criminal regime and bring it to justice? For years in the Clinton Administration we sought to persuade very reluctant Security Council members to establish a less intrusive remedy, namely an international criminal tribunal to indict the leadership of the Iraqi regime for these crimes and at least ostracize them from the international community while they remained in power. 

But we never overcame collective apathy, tribunal fatigue, national commercial interests, and alternative priorities. So this is not only about “over the horizon” conflicts and atrocities that the United Nations must be better prepared to prevent or confront if they erupt. The other challenge for the U.N. system and its member state governments is how to bring to an end the recurring, slow-burn atrocities in regions of the world that bask in impunity and suffer from failed strategies of peaceful engagement. 

Returning to the imminent atrocities or those erupting rapidly in real time, the delay mechanisms built into the bureaucracies of the United Nations and of national governments must be overcome despite all the expert studies and well-intentioned edicts from the Security Council and other international and regional entities. I had a motto in the Office of War Crimes Issues that I headed in the State Department during the second term of the Clinton Administration: “Timing is everything”.We found in our work that unless we acted ahead of the curve of events, or reacted aggressively within the bureaucracy once atrocity crimes were launched, the battle for the attention of policymakers and for resources often would be lost. Ironically, some of the procedures that I see being developed at the United Nations and in expert reports tend to bureaucratize the process even further. Often, there will be no time to work through logical but still timeconsuming procedures. 

That was our greatest collective failure during the genocide of 1994: both within the United States Government and within the international community, including at the United Nations, we reacted conventionally —despite the warning signals--to an unconventional crisis of astounding proportions. We did not know how or have the political courage to act unconventionally, to bypass conventional procedures (including military planning procedures) and develop very rapidly a procedural roadmap that could be implemented within days. It happened again with Srebrenica, where we really needed to react unconventionally within hours, not days. 

When I hear experts insist that force is a last resort and that all sorts of diplomatic steps must first be exhausted, I, as an international lawyer, understand what they are saying. But the thousands of victims whom I witnessed in the field do not. Until we find a process—politically, legally, militarily--that permits unconventional measures to prevent or stop atrocities, we will all founder in this critical undertaking. 

Avoiding any long explanations, I propose the following: 

1. The Secretary-General’s Group of Eminent Persons, a group we have not discussed much yet, could task a subgroup of experts to take a leap and draw up interpretative “elements” for key provisions of the U.N. Charter pertaining to peace and security. Yesterday, Dr. Blix said interpreting these provisions, such as Article 2(7), is not the real problem. I understand his point, but I respectfully disagree. Timing is everything, and we don’t have time to reinvent the debate over these provisions every time there is an atrocity. Such provisions require, for their most effective application in the 21st Century, modern understandings, broadly understood and succinctly stated, as to the scope of their meaning and application in light of the experience of the United Nations and the challenges confronting the contemporary world. This initiative would avoid amending the wording of the Charter, which would be a daunting and perhaps futile challenge. 

But the sub-group, perhaps named the “Charter Study Group”, also could recommend a few “technical” amendments to the Charter, such as removing the World War II enemy provisions. The technical amendments proposal could include, as a final provision, reference to the interpretative “elements” document and incorporate it into the amendment procedure without amending the wording of the Charter with the actual words of the interpretive clauses. The interpretive document could be a General Assembly resolution that is embraced in the amendments package as “suggested guidance” for future adherence to the Charter. 

Completion of the interpretative document could facilitate the final recommendations of the Group of Eminent Persons that will address how to confront emerging threats to international peace and security (including atrocity threats) in a timely and effective manner with minimal debate over issues of U.N. and national authority to authorize or take action. Time is short, but that might concentrate the endeavor. 

2. The Security Council could create a new subsidiary body, pursuant to its Article 29 power, that would focus on two major challenges: preventive action and the responsibility to protect.We have all heard that information is not the problem, knowledge is. True, but busy diplomats and policy-makers need huge cattle prods to wake them up. The subsidiary body’s mandate would be to bring to the Security Council’s attention as quickly as possible issues and events that require foresight or immediate action (i) to forestall armed conflict (including the threat of weapons of mass destruction use by any state or group or of any significant conventional terrorist action) or (ii) to protect civilian lives from violence and civilian property from destruction. The membership of the subsidiary body, perhaps named the “Early Warning Group” of if more narrowly constituted the “Counter-Atrocity Committee,” would be selected by the Security Council among a limited number of governmental representatives and highly qualified outside experts serving in a consultancy capacity. The Early Warning Group would have only the authority to advise and inform the Security Council (confidentially when necessary), but such advice would not be of any binding character on the Council. The Secretary-General proposed a group similar to this in his 2001 report, but the Security Council has not acted on that proposal. Times have changed since August 2001 and these requirements have even greater urgency and merit today. 

3. In December 1998 President Clinton tasked me to head up a new “ Atrocities Prevention Inter-Agency Working Group” within the federal government. It brought all the key agencies together, including the intelligence community, on a monthly, sometimes more frequent, basis to look over the horizon and bring to the attention of senior policy-makers threats of atrocities and steps that could be taken to prevent or limit them. I know of no similar effort in any other government. It was a useful, albeit imperfect process, and we learned many lessons along the way. But it convinced me that talented intelligence officers and career government officials will enthusiastically bring enormous skills to bear on the issues we have been discussing at this conference if given the encouragement, resources, and leadership. The same is true, of course, at the United Nations where many such initiatives are underway. I’ll never forget Sergio de Mello visiting me in my State Department office and expressing such keen interest in how national and international bureaucracies can, if properly led, cut through the maze and advise policy-makers early enough to make a difference. The options papers by Barbara Harff and Ted Gurr describe their path-breaking work done in this field, work that I benefited from enormously. I would propose that national governments explore such methodologies within their own agencies. Then there should be formed a liaison capacity among such national groups and the UN Secretariat so that coordination in real time has a fighting chance of occurring. In the Clinton Administration we planned, following a conference we held at the Holocaust Museum , to develop an international network of focal points among governments,NGO’s, and the media for this purpose but our time ran out. 

4. Dr. Bernard Kouchner yesterday raised again the merit of a rapid reaction force that the United Nations could deploy into atrocity zones. Having worked that issue in the early 1990’s when the United Nations took the small step of setting up a data bank of national capabilities for rapid response, I strongly endorse a return to Article 43 of the U.N. Charter with a pragmatic, realistic plan to make available in real logistical time certain military capabilities that can be deployed following a Security Council decision to do so. The logic for this—which was foreseen in 1945—has become inescapable. 

5. Finally, there is one fairly simple mechanism that can be activated to address the issue I first raised, namely recurring atrocities. For a host of reasons I have no time to explain, I believe that the should permit, even encourage, the Security Council to refer the atrocities in the Ituri region of the Democratic Republic of Congo to the International Criminal Court for investigation and prosecution. The sooner that is accomplished, particularly with the considerable enforcement authority that would be available to the court with such a Chapter VII referral, the sooner impunity will be challenged in that atrocity zone. If, on behalf of the United Nations, the Security Council were to authorize the International Criminal Court to demonstrate both its judicial and preventive capacities in the , that endeavor might reverberate in the vast forests of the and mark a new turning point in the slaughter. It might even make a difference to the common sense of the American people, who occasionally do turn Washington around. 

Thank you.