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Burden of Proof

Millennium 2000: Would an International Criminal Court Help or Hinder Pursuit of Global Justice?

Aired January 2, 2000 - 3:15 p.m. ET


GRETA VAN SUSTEREN, CO-HOST: As the sun rises at the dawn of a new millennium, countries and continents find themselves more intertwined than in any other time in history. While we learn the lessons of history and hope we're not condemned to repeat it, in the event of a future unspeakable horror, where and how will the world handle it? Local communities have their own criminal courts to try cases. But who prosecutes crimes of a global scale?

Today, on a special edition of BURDEN OF PROOF: an international court of justice. Will a new judicial system help govern our global community, or will it trample on the jurisdiction of your local courthouse?

Hello, and welcome to a special edition of BURDEN OF PROOF.

A new century brings with it endless possibilities. Among them, the potential for a permanent international criminal court.

ROGER COSSACK, CO-HOST: Now, during the past 100 years, the world has struggled to find ways to address crimes of global proportions. But will the world's legal community apply those lessons of crimes against humanity in a new millennium?



UNIDENTIFIED ANNOUNCER: At Nuremberg, the Hitler gang has gone on trial. For the first time, criminal war leaders are being judged by an international court.


VAN SUSTEREN (voice-over): More than half a century ago, the Nuremberg trials were held to bring Nazi war criminals to justice. For the first time in history, an international court was created, a court whose law would be greater than that of individual nations. The creation of the Nuremberg court was propelled by images of horror the world had never seen before. Then in Bosnia, as the former Yugoslavia broke apart, these similar images of horror returned, and with them, another call for international justice.

UNIDENTIFIED MALE: Count four, torture, a crime against humanity.

VAN SUSTEREN: In 1993, the U.N. voted unanimously to approve the creation of the Yugoslav War Crimes Tribunal. And in 1994, as genocide cost hundreds of thousands of lives in Rwanda, the world community once again agreed to let an international tribunal prosecute and judge those responsible.

UNIDENTIFIED MALE: That the Federal Republic of Yugoslavia is not...

VAN SUSTEREN: The world's legal communities may not agree on much, but violations of basic human rights have provided an opportunity and consensus.

ABBE LOWELL, FMR. SPECIAL COUNSELOR FOR U.N. HIGH COMM. HUMAN RIGHTS: No one's suggesting that we have a world that we would brag about respects human rights. But human rights is part of the vocabulary of almost every country. And one of the things that I'm optimistic about has been the progress of the last 25 years and the progress of the next 50 or 100.

VAN SUSTEREN: But not everyone shares that optimism. International justice, they say, is often too easy to evade.

MARY ROBINSON, U.N. HIGH COMMISSIONER FOR HUMAN RIGHTS: It's less likely that somebody who has massacred a 100, 000 people or have been responsible for their death would be brought before any accountable court than somebody who commits a domestic murder.

VAN SUSTEREN (on camera): Those international tribunals, including those that are now dealing with abuses in Bosnia and Rwanda, are temporary courts with limited reach. As the millennium dawns, globalization of the world's economy is well underway, but the idea of one worldwide justice system faces some formidable hurdles. Currently, there is a world court at the Hague that does make non- binding decisions on civil disputes between nations. But the world still has no permanent international criminal court.

European countries, already combining their economies, are now entertaining the idea of streamlining their various justice systems. They call the attempt Euro-just.

ANNE MARIE SLAUGHTER, DIR., INTL. LEGAL STUDIES, HARVARD UNIV.: What we're going to do is create a network of national judges and also national magistrates and everyone involved in the enforcement of the criminal law, and that network of national officials is going to have responsibility for enforcing the law throughout the European Union, what they call the European legal space, and that's a remarkable innovation.

VAN SUSTEREN (voice-over): But a call for a globalization of any system is not always met with open arms. The unexpected and violent disruptions at the World Trade Organization's meeting in Seattle a month ago show that economic globalization will not be achieved without opposition. (on camera): Recently, an effort to create an international criminal court of justice that would do the work of the current tribunals, but on a permanent basis, was seriously set back. The court's mandate would be limited to crimes like genocide. But the United States, along with six other nations, voted against the treaty.

VIET DINH, PROFESSOR OF LAW, GEORGETOWN UNIV.: I think there is a need for it, but I think there is also a danger to such a court, a danger that the United States has recognized, obviously, through its voting against the creation of the international criminal court. And the danger simply is that you are giving up certain control over your own citizens.

VAN SUSTEREN (voice-over): Specifically, the United States is worried that U.S. servicemen and servicewomen could be accused of war crimes by political adversaries and be tried by an international tribunal, rather than a U.S. military court.

Meanwhile, there are real concerns about the temporary tribunals' effectiveness. Slobodan Milosevic has been indicted by a temporary tribunal, but has yet to be arrested. In the future, if a permanent criminal court is established, will it have more or less clout in bringing Milosevic and others like him to real justice?

But what about the distant future?


UNIDENTIFIED ACTRESS: The Imperial Fleet spread throughout the galaxy...


VAN SUSTEREN: In "Return of the Jedi," part of the "Star Wars" epic, the idea of universal justice and a worldwide government captured Hollywood's idea of the future. How possible will that be as the next millennium dawns? Opinion is divided.

SLAUGHTER: What you won't have is some kind of world government where you have a global supreme court that has supreme judicial authority. That won't happen.

LOWELL: I think two thinks are for sure: fewer and more simple and direct laws; more use of the same media that are being used in every other way to deal with law; and I think that there's the possibility of sort of one national, universal law and tribunal to resolve it.

DINH: Certainly, if the trend of nationalization and internationalization continues, it is not beyond the realm of imagination. But what it means is that we have no more local jurisdictions, no more local sovereignty, and what we have is a world government. And that is at the same time a very promising aspect with respect to world peace; that is also a very disturbing aspect with respect to the possibility that one may be governed by somebody halfway around the world rather than, you know, up the street at the local courthouse.

VAN SUSTEREN (on camera): And a final prediction that might strike fear into the hearts of the legal establishment.

LOWELL: I also think a thousand years from now there won't -- there will be nothing close to what the law firm structure is, or lawyers, as they are now, and that will be sort of a way anachronism.


VAN SUSTEREN: Joining us today from London is international law professor at the University of London, Mods Ondennis (ph). And here in Washington: Gabrielle Kirk McDonald, a former judge at the International War Crimes Tribunal; David Scheffer, the U.S. ambassador-at-large for war crimes issues; and Patricia Wald, currently a judge at the International War Crimes Tribunal.

Judge McDonald, first to you, we talked -- in the piece we just saw, we saw the fact that we have had a temporary criminal court in the last 50 years to address certain issues. Do we need a permanent criminal tribunal?

GABRIELLE KIRK MCDONALD, FMR. JUDGE, INTL. WAR CRIMES TRIBUNAL: Yes, we definitely need a permanent international criminal court for a number of reasons. First of all, I believe that an international judicial response is needed to prosecute, consider international crimes. States have been reluctant to prosecute persons charged with war crimes and crimes against humanity and genocide. Imagine, for example, the president of state A seeking to encouraging the prosecution of the president of state B for genocide. That's not going to happen and it simply has not happened. So what we have seen is a proliferation of conflicts with very horrific consequences.

VAN SUSTEREN: But why not the ad hoc versus the permanent? Why do we need the permanent court?

MCDONALD: Well, for a number of reasons. One reason is that the ad hoc tribunal for the former Yugoslavia, at least, and the Rwanda tribunal as well, have faced criticisms that it's selective justice, and that is that the Security Council will establish a tribunal for one country, one conflict, but not for others. For example, why the former Yugoslavia? Why Rwanda? Why not Sierra Leone?

Another problem, or another concern, I think, is that we need a permanent court in place before the conflicts begin. Whereas for the ad hoc tribunals they were established after the conflicts -- while the conflicts were ongoing. And peace was not achieved through the Dayton Accord until two years after the ICTY, the Yugoslav tribunal was established.

So you need a permanent court in place. If you're going to talk about deterrence, for example, the best way to deter criminal conduct is if there is some certainty of punishment. Well, if there is no court in existence, then it's unlikely that the deterrence will even have a chance. So there are a number of reasons. That's a few of them. COSSACK: Judge McDonald, you talk about the necessity for a permanent court and you also point out the fact that states are reluctant -- we've seen Milosevic be indicted, but yet he is yet to be brought before any court. If you had a permanent court, how would you see it described? Who would belong to it and how would its orders be enforced?

MCDONALD: Well, when you say reluctant, I think that, that may be an understatement. The Yugoslav tribunal has faced considerable difficulty in having its warrants, its orders executed. The international criminal court, as it is presently constituted in the statute, I think will face some of the same problems in that both will lack coercive mechanisms which are typical and necessary for all criminal courts.

For example, if an warrant is issued, or a warrant is issued by a court here in the United States, it would be unthinkable for someone not to respond to that. Well, both courts, that is the ad hoc tribunals as well as the permanent international criminal court, I believe will suffer from that problem.

VAN SUSTEREN: Judge Wald, you were the chief judge here in the United States Court of Appeals District of Columbia before you became a member -- a judge on this court. You had an awful lot of power at the U.S. Court of Appeals here in the United States. Do you feel that you have the same amount of power to get your orders executed when you issued them on your new job?

PATRICIA WALD, JUDGE, INTL. WAR CRIMES TRIBUNAL: Well, first of all, I am not the chief judge anymore on the new court. But of course, Judge McDonald was for a period of time before she retired. But no, clearly the answer is no. We have a mature judicial system in the United States. We have the U.S. marshals, we have the U.S. attorneys, and by and large, except for an aberrational situation like the period in some places during the civil rights disputes in the '60s or the Civil War, states will -- the states' law enforcement mechanisms will also enforce, if necessary the federal orders.

We have to depend in the tribunal upon the cooperation of the countries in which the orders are to be executed, or in some cases if we are seeking to have a suspect or an indictee apprehended, you have to depend upon the cooperation of the U.N. or the NATO peacekeeping forces to try to get them. So clearly you are dealing with a completely different situation. But I do want to add that I think -- my sense is we are making some progress, maybe not in Yugoslavia, but that there is -- there are signs of an increased cooperation with some of the other countries, which may have been more reluctant, and hopefully that will increase in the future.

VAN SUSTEREN: We are going to take a break.

Up next, is there a need for a permanent court to oversee crimes against humanity, or should such cases be prosecuted on an individual basis in a form which best suits the circumstances?

Stay with us. (COMMERCIAL BREAK)

VAN SUSTEREN: Welcome back to this special millennium 2000 edition of BURDEN OF PROOF.

David, I want to talk about the treaty in Rome that was negotiated in July of 1998. What crimes would a permanent criminal tribunal cover, and what's the U.S. position on the current treaty that was proposed?

SCHEFFER: The crimes are what I sometimes describe as the megacrimes of genocide, crimes against humanity, and serious war crimes, as well as the contingency for prosecution of the crime of aggression. But that was left hanging at the end of the Rome conference for further definition in future years of negotiation before that crime could actually be prosecuted before the court.

The U.S. position, of course, has been we've negotiated for many years in support of creating this permanent court. These are crimes we felt, should be brought before the court for prosecution, and we believe the Rome statute is very, very close to achieving that objective. We think there is a small but very, very important gap that still needs to be filled, and we're working very hard...


SCHEFFER: It's a gap that would expose particularly the armed forces of non-state parties, in other words countries that have not yet joined the court, to the actual full jurisdiction of the court, without those governments actually agreeing to be bound by this treaty and by the rules of the court.

VAN SUSTEREN: Hasn't the United States, though, in essence, acquiesced or done that, because the United States has peacekeeping forces in Yugoslavia right now, and both judges have served on the -- Judge McDonald has served, Judge Wald does serve -- on a court that would have jurisdiction over American soldiers? So hasn't the United States acquiesced to that point?

SCHEFFER: We have to the extent that we fully supported the creation of the Yugoslav and Rwanda war crimes tribunals, and their jurisdiction encompasses any party that may be engaged in the conflict in those religions. So we have no difficulty with that. We voluntarily submitted ourselves to that jurisdiction. We are on the Security Council. We helped create those tribunals. We know what the score is, and what the rules of the game are.

But we do have difficulties, since it's so difficult to predict when a treaty could be ratified in this country -- it could take 10, 20, 30 years -- that we have to be extremely careful that during that period of time that the United States may not actually be a full- fledged party to this treaty -- because no one can predict when it would become a party -- that our armed forces overseas are justly dealt with respect to exposure to this court.

COSSACK: Mads, you have just heard Ambassador Scheffer talk about the concern the United States has. What is the European concern in terms of signing on to this permanent criminal court and having the criminal court then review the actions of, for example, Great Britain's solders?

ANDENAS: Well, obviously, these questions are very difficult. We to some extent have a system like that in Europe in place today. We have the European Human Rights Convention. And Britain has been subjected to critical review. The human rights court has come down very hard on Britain in relation to Northern Ireland, in relation to the dealing with IRA suspects, terrorist suspects.

So in a way we have prepared ourselves for this over a period of time. And, of course, all big countries share certain concerns, and all big countries are concerned about subjecting themselves to any kind of jurisdiction by any international tribunal. But I think both the legal community and the political communities in Europe are very well prepared for this and have acted as strong forces behind the new international tribunal.

COSSACK: Ambassador Scheffer, can you imagine or can you visualize a situation where our troops would be criticized? We had would allow our troops to be criticized as Mads just pointed out that what happens in Europe?

SCHEFFER: Well, we're not intimidated by the prospect of our soldiers conduct being put under scrutiny for compliance with the laws of war. We have a very long tradition of trying to enforce the laws of war within our military court systems. And occasionally there will be mistakes or other rogue elements that take place, even within our armed forces, that have to be dealt with by our military court system. And we have great confidence in that military court system.

COSSACK: It's not our military -- it's not the United States' military court system that I'm asking about. It's about turning over jurisdiction to some other court to judge United States troops.

SCHEFFER: Well, the Rome treaty has been negotiated such that if there were to be charges or investigations launched against American armed forces, there is an opportunity for the American government to step in under a rule called complementarity and snatch that investigation away and conduct it domestically ourselves so that we can investigate these problems ourselves.

We do want to make sure, however -- and that's why I say this is a small gap that needs to be filled in the treaty -- between the very noble principles and ideals of this treaty of criminal justice, which we strongly support, and the ability of armed forces to do what we consider to be worthy endeavors overseas -- and that's a major challenge for the 21st century. It revolves around such concepts as humanitarian intervention, self-defense of nations which are under siege illegally.

And our armed forces are stretched far more than any other armed forces around the world to accomplish these objectives. So we have to make sure that this treaty is a good fit with the objectives that our armed forces, many times in unison with British and other forces, have to achieve overseas.

And I think our allies understand that, that we're trying to find that fit between the treaty and what is increasingly a necessity. And that is the use of military force for the protection of civilian populations.

COSSACK: All right, we'll continue our discussion on a permanent international criminal court when we come back,

Stay with us.


COSSACK: Welcome back to this special "Millennium 2000" edition of BURDEN OF PROOF.

Technology, and merging markets have brought the global village closer together than ever before. Can the world's legal community find common ground in prosecuting crimes against humanity?

Judge McDonald, I'm going to put you right back on that bench, and judges are to interpret the laws. Where are these laws going to -- who's going to enact these laws that this permanent criminal court is going to follow.

MCDONALD: Well, the permanent criminal court already has a statute which has been approved by 120, as I recall, states. And it has subject matter, jurisdiction, as we have discussed already, for crimes against humanity, genocide. And the Geneva convention's crimes against aggression, though, as Ambassador Scheffer indicated, will be delayed, pending a definition of crimes -- of the crime against aggression.

The ICTY has subject matter jurisdiction -- and that is the Yugoslav tribunal -- for the Geneva convention, grave breeches, the Geneva conventions of 1949, laws and customs of war, crimes against humanity and genocide.

So the jurisdiction is very similar, and the experience of the Yugoslav tribunal has really increased the momentum to establish a permanent international criminal court. There's been discussions for 40 years or more about establishing a permanent court. But the Yugoslav tribunal demonstrated that it could be done, that you could put together the two systems, common law, civil law, and try persons on an international level for war crimes and crimes against humanity.

VAN SUSTEREN: Judge Wald, I know what you used to do when you were on the U.S. Court of Appeals. What do you do now? What is your day like? What are these trials like?

WALD: Well, I've only been there a few months, and I've been assigned to two trials and an appeal. So far, we've mainly been doing pre-trial work, getting the trials set up so that they can hopefully go more expeditiously.

But let me just give you an example of the kind trial, because I think it is so different from what we're used to, except in perhaps very unusual situation in the United States. An indictment, say, for a crime against humanity or for a war crime might well involve not just one defendant, but it might involve people up and down the ranks of the military and sometimes of the political establishment, people like mayors and people like commanders. It may involve a situation that took place over a period of a year or more.

If you have a commander of a detention camp where the allegations are that the women were sexually abused, the men, the non-combatant civilian men were sometimes taken out and executed, were used as human war shields, it went on for months, you have hundreds of witnesses. Sometimes whole villages of people, at least a certain population, be it Muslim or Croatian. And believe me, there are defendants on all sides of these disputes, who were forcibly removed and put on forced marches.

These kinds of crimes involve hundreds of witnesses. They don't usually have a big paper documentary record. It's like recreating, or trying to recreate, history through hundreds of witnesses, so that trials tend to be much longer than any, except perhaps the most expensive kind, a drug conspiracy trial, that I'm familiar with.

VAN SUSTEREN: No juries?

WALD: No juries, but trial to three judges.

VAN SUSTEREN: From different countries?

WALD: All professional -- all professional judges, not lay judges, from all different countries, yes.

COSSACK: Ambassador Scheffer, in hearing that, that's totally different than the traditional American system that we have here with a jury. And do you think that that would create special problems for people to sign -- for the United States to sign on to something like that? To give up the traditional trial by jury?

SCHEFFER: No, when we were negotiating the Rome treaty, we always kept very close tabs on does this meet U.S. constitutional tests, the formation of this court and the due process rights that are accorded defendants. And we were very confident at the end of Rome that those due process rights, in fact, are protected, and that this treaty does meet a constitutional test.

So, keep in mind that most of the world, in fact, does not have a jury system and does not render criminal justice the way we do in the United States or in the United Kingdom or other common law countries. Most of the world prosecutes criminal defendants in accordance with civil law concepts, where judges not juries are in fact the determiners of the final judgment.

So we know that. We weren't surprised by it, and we were able to work very comfortably with that. But we had to keep our eye on the ball of what are the due process rights that are being protected in the statute? And, in fact, we're doing that now in further negotiations for the rules of criminal procedure and evidence for the court. We're deeply engaged in making sure that those rights, in fact, can be preserved.

VAN SUSTEREN: All right, we'll take a break.

And up next, resolving international horrors in an international forum, when we come back.


VAN SUSTEREN: Welcome back to this special "Millennium 2000" edition of BURDEN OF PROOF.

Mads, let me ask you. When I studied law in law school, I studied American law and some British law, and it went back hundreds and hundreds of years. How do you create a body of law for a permanent international criminal tribunal, because we're really, basically starting from scratch, and you've got all these world systems and customs and rules. How do you marry it together to get one system?

ANDENAS: It is incredibly difficult, of course. Well, you have to begin. And everybody who takes part in this process has to realize that the standards of this new international court is not going to be the standards that they know from home...

VAN SUSTEREN: But, Mads, let me...

ANDENAS: ... it won't be the standards you were taught about in law school.

VAN SUSTEREN: Mads, but even take something like the death penalty. The United States has a death penalty, and many countries think that is abhorrent and outrageous. In the United States, they don't flog people, for instance. How do you even agree on punishment?

ANDENAS: Well, I expect them -- you cannot impose the death penalty in international tribunal. You cannot do that. It has to be common standards. You have to establish some element of minimum standard in this.

But death penalty is a good instance. You know that most of the former communist countries in Eastern Europe have entered the Council of Europe and have now signed up to the European Human Rights Convention. And in order to do that and in order to sign up in the cue to become members of the European Union, you have to take on an obligation to do away with the death penalty. And that's unconditional.

You cannot become a member of the Council of Europe sign off to the human rights convention or become a member of the European Union without abolishing the death penalty. Now, of course, you just have to realize that there is no such thing as universal human rights over certain very basic minimum standards, and a truly international court has to take that into account.

It is not European human rights standards, it is not American -- U.S.-American human rights standards. And that's very difficult -- it's difficult for politicians, and I expect in particular for lawyers. Lawyers are conservative, to some extent, and we believe in our legal system, and most of us have some reason to be a bit proud of it. You know, we definitely feel that in England, and I do know that most U.S.-American lawyers do, too. But that doesn't mean that a project like this should not come about. One just has to, from the outset, have a very realistic appreciation.

It is not the question of enforcing U.S. human rights standards around the world, it's the question of establishing a new system, a minimum standards system, which, to some extent, might also mean that the U.S., in the longer perspective, has to change its domestic system. And that, of course, would be extremely painful. It was very painful for the European countries signing up to the European Human Rights Convention. Britain has had -- the U.K. has had to change a lot. Sweden France, Germany, all the European countries have had to change their systems, and...

VAN SUSTEREN: And everybody's got to -- everyone had learn to agree with each other, or at least give and take a little bit, which is the art of diplomacy, I guess.

ANDENAS: Yes, yes, you know, but if you can imagine how difficult this is, because it's not a question of a political decision-making process. This was a combination. You have to give this, to some extent, to the court, which develops this in case law. You can't have...

COSSACK: Mads, Mads, let me...

ANDENAS: The first steps...

COSSACK: Mads, let me interrupt you for just a moment, because we're going to have to take a break.

But up next, will an international court of justice really exist someday? And how much power will it have?

Stay with us.


COSSACK: Welcome back to this special "Millennium 2000" edition of BURDEN OF PROOF.

We've focused our debate this hour on the potential of an international court of justice. If legal global partners can agree on the creation of such a court, what type of jurisdiction will it have?

Well, Ambassador, the United States has not yet signed on for this court. Do you think that the chances are that the United States eventually will sign on?

SCHEFFER: Oh, I think the opportunity is there. But we still have some modifications to look at. We don't need to change the actual text of the treaty itself, but we need to make sure in coming months, as these negotiations continue at the U.N., that opportunities are seized by all governments participating in these negotiations to ensure that some of the concerns we've expressed, in fact, are addressed, and we can move on with this court.

I think the opportunity is there. I think the chances there, and I remain optimistic that the United States ultimately can become a party to this court.

VAN SUSTEREN: Judge McDonald, I want to ask you and both Judge Wald essentially the same question. Let me start first with you. Can the court handle the number of indictments that there are pending? We don't know if sealed indictments, but with all the possibilities of people who could be involved in these horrible atrocities, is the court suited for it right now?

MCDONALD: I think that the court is suited for it right now. I think that one of the concerns that the court has is developing procedures and following procedures to expedite the trials without trampling on the rights of accused. So, yes, I think that the court is capable of doing it, provided that more -- more firm pre-trial management is developed.

One recommendation that was made by the group of experts recently reviewing the tribunal was the use of ad hoc judges. And that would be judges who would come in on a temporary basis when there was an overload to try some of the cases. And there were other recommendations as well. But the court is capable of doing it. And...

VAN SUSTEREN: Judge Wald, let me ask you. Let me do a little mathematics. Fourteen judges on the court, 92, give or take a few indictments -- there may be some sealed ones -- three judges sit on each trail, these trials last forever. It seems rather overwhelming. Do you think that they're...

WALD: At this juncture, I'd say that we are challenged. There's no questions. You know, the court came into being in 1993 but never sat on a trial until 1996. Now it has so far gone, finished the trial -- a few of these are on appeal, but it's finished the trial in, well, it's something like between eight and 10 cases with about 15 defendants. There are 17 cases, 17 defendants, and eight or nine cases getting ready for trial. I think we will have to change a lot of our practices pretty strongly to expedite trials. I guess they simply can't last a year or a year and a half anymore unless it's going to be become the permanent war crimes court, which...

MCDONALD: But they don't all last a year. The first case that was tried was the Tatic (ph) case, over which I presided. It lasted 86 trial days, and it had a number of difficult issues. And also you need to consider it was the first trial.

Another case was tried in a couple of months. Another case was tried in a couple of weeks. So not all of them are that lengthy. There are some, and these are the ones that we hear about, of course, that are perhaps the two years. But not all cases last...

VAN SUSTEREN: David, in light of what... MCDONALD: ... as long as two or three years.

VAN SUSTEREN: David, in light of what the judge has said but in light of, you know, my mathematics, and in light of the fact that the system is sort of, you know, the conglomeration of different judicial systems in agreement, is there a provision in the Rome treaty for something that in the United States is known as the speedy trial?

SCHEFFER: Oh, the Rome treaty certainly tries to facilitate speedy trial procedures. There are requirements as to when indictments must be acted upon by the court, and once an individual is actually brought into custody, how quickly that individual must be arraigned and the proceedings commenced with respect to that defendant. But it is an issue that is central to creating a permanent court, and that is all of this experience that's gathered from these ad hoc tribunals are going to be brought to bear on exactly how well a permanent court can work. And as we know there's still a lot more to learn and a lot more to make sure that we effectively negotiate into these additional documents with respect to the permanent court.

COSSACK: Well, talk about a difficult job. This -- to negotiate this one, I think, is perhaps the most difficult that I've heard.

VAN SUSTEREN: An important court, though, very important.

COSSACK: Right. That's all the time we have for this special edition of BURDEN OF PROOF.

Tomorrow, we focus on the future of medical advancement and the laws surrounding it.

VAN SUSTEREN: If genetic engineering can create the millennium superman, should the legal community step in?


H. KING BUTTERMORE, TRIAL ATTORNEY: Who would have an interest in seeing that there were another you on this Earth? And who would benefit from that? Do we set out to create another Picasso? Another Pavarotti? Another Ted Williams? If we do that, what if somebody decides we need another Hitler?


COSSACK: Tomorrow, on a special "Millennium 2000" edition of BURDEN OF PROOF, the clash of law and science in the 21st century. That's at 21:15 Eastern time, 9:15 Pacific.


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