but they also adopt many of the measures prescribed by the Committee to ensure that the ICC acts
in “the best interests of the child” by attempting to balance the right of a child to be heard with
the duty to protect the child.
III. THE INTERNATIONAL CRIMINAL COURT: PROMOTING THE RIGHT TO BE HEARD AND
BALANCING IT WITH THE DUTY TO PROTECT
The ICC’s definition of the crimes within its jurisdiction and its definition of “victim”
make it likely that a higher number of child victims and witnesses will be brought before the ICC
than have been brought before other international tribunals. For this reason, a proper balancing of
the right to participate and the need to protect children, as understood by the CRC, is required.
As noted above, the CRC canonizes both the right to participate or be heard and the need
to act in the “the best interests of the child.” While the ICC, as an international organization,
cannot be a party to and is not bound by the CRC, one may argue that the fact that the CRC has
been ratified by all but two States58 supports the assertion that the international community is in
general agreement that children should be provided the rights and protections expressed therein.
Even if the ICC did not make a conscious decision to apply the CRC principles applicable to
child testimony, one may view the rules and procedures that the ICC has implemented toward
victims and witnesses generally, and children in particular, as internalizing the CRC principles of
participation and protection.
This Part will proceed in five sections. First, Section A will review the likelihood of child
victims coming before the ICC. Next, Sections B through D will look at the general principles of
participation and protection in the ICC. Finally, Section E will discuss provisions of the Rome
Statute, which established the ICC, and the ICC’s Rules of Procedure and Evidence that are
especially applicable to children.
A. The ICC and the Increased Likelihood of Child Testimony
Children are more likely to participate as witnesses or victims in ICC proceedings for two
reasons. First, children are more likely to participate in ICC proceedings because of the crimes
that are defined as falling within the ICC’s jurisdiction. The ICC was developed to address “the
most serious crimes of international concern.”59 The Rome Statute gives the ICC jurisdiction over
crimes of genocide, crimes against humanity, war crimes, and crimes of aggression.60 Included
among the definitions of each of these crimes are actions that specially target children. For
instance, one action that may constitute genocide for purposes of the Rome Statute includes that
of “[f]orcibly transferring children” of “a national, ethnical, racial or religious group . . . to
another group” with the “intent to destroy, in whole or in part” the group from which the children
were removed.61 Additionally, the Rome Statute prohibits groups from enlisting children under
the age of fifteen into the armed forces or using children under the age of fifteen “to participate
actively in hostilities,” whether the conflict is of an international character or not.62 Because
certain acts of genocide and war crimes, specifically the crime of using child soldiers, are, by
definition, crimes committed against children, the Rome Statute essentially acknowledged from
the outset that the experiences of children would be given prominence by the ICC.
58 See UN Lauds Somalia as Country Ratifies Landmark Children’s Rights Treaty, supra note 6.
59 Rome Statute of the International Criminal Court, adopted by the U.N. Diplomatic Conference of Plenipotentiaries on the
Establishment of an International Criminal Court on 17 July 1998, art. 1, U.N. Doc. A/CONF. 183/9 (1998), 37 I.L.M. 999
[hereinafter Rome Statute].
60 Id. at arts. 5, 6–8.
61 Id. at art. 6.