while simultaneously providing protections to children who testify about their experiences in
conflict situations: “Children’s participation helps them to regain control over their lives,
contributes to rehabilitation, develops organizational skills and strengthens a sense of identity.
However, care needs to be taken to protect children from exposure to situations that are likely to
be traumatic or harmful.”50 In attempting to strike the correct balance between protecting “the
best interests of the child” and respecting their right to be heard, one must not “[e]rr too far on
the side of protection [because doing so can] den[y] children the right to be heard, inhibit
opportunities to develop their capacities for participation and . . . can serve, perversely, to
The Committee outlined a number of measures that members of the international
community should take in order to help strike the correct balance between protection and
participation. These measures include making sure that children are fully informed about the
procedures and the setting in which they will be giving testimony;52 that children are not
interviewed more than necessary, particularly when they are testifying about traumatic events;53
that the conditions of the setting where a child will provide testimony make the child feel at
ease;54 and that children are “informed about [the] availability of health, psychological and social
services.”55 Additionally, the Committee stated that it is preferable that children “not be heard in
open court, but[, rather,] under conditions of confidentiality.”56
As the carefulness of the Committee suggests, one must take heed when trying to strike
the correct balance between participation and protection. While the best-interests principle
necessitates taking certain actions that provide children participating in criminal trials, like those
before the ICC, with added safeguards due to their youth and sensitivities, this principle should
not be used to “trump other rights in the Convention [or] override the child’s right to express
views. Indeed, consideration of the child’s views must be an integral part of determining the
child’s best interests . . . .”57
The ICC has seemingly internalized the provisions of the CRC. The ICC’s jurisdiction,
procedures, and protocols not only make it more likely that children will appear before the court,
50 Id. ¶ 125. This idea was also expressed by Lansdown, who stated: “It is necessary to balance the right to participation with the right
to protection, recogni[z]ing that it can be as harmful to make excessive or inappropriate expectations of children as to deny them the
right to take part in decisions they are capable of making.” Lansdown, supra note 20, at 18.
51 Lansdown, supra note 20, at 18.
52 Gen. Cmt. No. 12, supra note 22, ¶ 25. The Committee requires that a child “be informed about the conditions under which she or
he will be asked to express her or his views. This right to information is essential because it is the precondition of the child’s
clarified decisions,” id., and allows children to “receive all necessary information and advice to make a decision in favour of [their]
best interests.” Id. ¶ 16. To this end, “[t]he decision maker must adequately prepare the child before the hearing, providing
explanations as to how, when and where the hearing will take place and who the participants will be . . . .” Id. ¶ 41.
53 Id. ¶ 24. (“[A] child should not be interviewed more often than necessary, in particular when harmful events are explored. The
‘hearing’ of a child is a difficult process that can have a traumatic impact on the child.”).
54 Id. ¶ 23 (“States [P]arties must ensure conditions for expressing views that account for the child’s individual and social situation and
an environment in which the child feels respected and secure when freely expressing her or his opinions.”). The Committee further
elaborates on this requirement later in the Comment, stating:
A child cannot be heard effectively where the environment is intimidating, hostile, insensitive or inappropriate
for her or his age. Proceedings must be both accessible and child-appropriate. Particular attention needs to be
paid to the provision and delivery of child-friendly information, adequate support for self-advocacy,
appropriately trained staff, design of court rooms, clothing of judges and lawyers, sight screens, and separate
Id. ¶ 34.
55 Id. ¶ 64. For further discussion on proper mechanisms for participation see Lansdown, supra note 20, at 21 (noting that there are “a
set of indicators relating to the principles or standards that are widely agreed to represent appropriate practice when working with
children. Participation of children must be transparent, accompanied by appropriate information, voluntary, respectful, relevant, child
friendly and enabling, inclusive, safe and sensitive to risk and accountable”).
56 Gen. Cmt. No. 12, supra note 22, ¶ 43.