reduc[ing] trauma associated with . . . participation or giving testimony in court.”91 These
rationales appear to largely guide the protective measures under the Rome Statute and the RPE.92
The primary provisions governing the protection of victims and witnesses in the ICC are
in Articles 68 and 69(2) of the Rome Statute and Rules 87 and 88 of the RPE.93 These measures
“must be taken . . . during the investigation and prosecution of the crimes[.]”94 However, the
measures that are taken to protect victims and witnesses will vary depending on the individual
and the circumstances surrounding his or her testimony. This is evidenced by the Rome Statute’s
requirement that the ICC take into account “all relevant factors, including age, gender[,] health,
and the nature of the crime, in particular, but not limited to, where the crime involves sexual or
gender violence or violence against children.”95
E. ICC Child Participation Rules and Procedures
When dealing with international criminal proceedings, such as those before the ICC,
common issues arise with regard to child testimony. These issues include, but are not limited to:
“how to obtain sufficient information from children, particularly from young children, without
using leading or suggestive questions; how children should present their evidence; how to
appraise children’s evidence; and how to balance children’s rights to a voice in the legal system
with defendants’ rights to a fair trial.”96 The principles of protection and participation embraced
by the CRC, and the means by which the ICC has sought to actualize them, address some of these
The Rome Statute and the RPE establish protections in the ICC for vulnerable
individuals, including child witnesses and victims.97 Not only are there certain crimes within the
ICC’s jurisdiction that are specifically related to children, 98 but the Rome Statute and the RPE
also establish “special measures to protect children during the investigation and prosecution of
cases,” and require that there be “ICC staff with expertise in children’s issues.” 99
91 de Brouwer & Groenhuijsen, supra note 15, at 173.
92 See, e.g., id. (“[T]hree main categories of protective and special measures for [ICC] victims and/or witnesses can be discerned,
namely, those aimed at: (1) protection from the accused and his counsel (also referred to as anonymity measures); (2) protection from
the press and the public, such as the use of pseudonyms for victims and witnesses (also referred to as confidentiality measures); and
(3) protection from re-traumatization, such as measures that avoid face-to-face confrontation with the accused.”).
93 Article 68 was discussed supra Part III.C. As mentioned, Article 68 requires the ICC to take appropriate, protective measures for the
“safety, physical and psychological well-being, dignity and privacy of victims and witnesses.” Rome Statute, supra note 59, at art. 68.
Additionally, Article 68 discusses alternatives to public hearings and the ability of the Victims and Witnesses Unit to advise the Court
on “protective measures, security arrangements, counseling and assistance.” Id. Article 69(2) describes alternatives for witness
testimony. Id. at art. 69(2). Additionally, the RPE discuss protective measures and special measures in Rules 87 and 88, respectively.
ICC Rules of Procedure and Evidence, supra note 63, at R. 87, 88.
94 de Brouwer & Groenhuijsen, supra note 15, at 173. Many of these measures will be discussed in more detail infra Part III.E.
95 Rome Statute, supra note 59, at art. 68(1) (emphasis added); see also de Brouwer & Groenhuijsen, supra note 15, at 173.
96 Bussey, supra note 1, at 210. The reasons that these issues arise with regard to child testimony become apparent when one
considers, in part, that “[c]hildren, especially younger ones, are open to suggestion and their spontaneous statements tend to be brief”
and that “children, due to fear of the suspect, will hesitate in giving a statement.” COUNCIL OF EUROPE, supra note 38, at 241.
97 See Van de Voorde & Barberet, supra note 75, at 43.
98 See supra Part III.A.
99 Van de Voorde & Barberet, supra note 75, at 43. Some provisions of the Rome Statute that require that ICC staff have experience
on children’s issues include Articles 36(8)(b) and 42(9). These articles state:
Article 36(8)(b): States Parties shall also take into account the need to include judges with legal
expertise on specific issues, including, but not limited to, violence against . . . children.
. . . .
Article 42(9): The Prosecutor shall appoint advisers with legal expertise on specific issues,
including, but not limited to, . . . violence against children.
Rome Statute, supra note 59, at arts. 36(8)(b), 42(9). For a general overview of the forms of protection provided by the Rome Statute
and the ICC’s Rules of Procedure and Evidence see Fact Sheet: Children & the ICC, CITIZENS FOR GLOBAL SOLUTIONS (July 26,