A number of provisions of the Rome Statute allow individuals to take into account the
circumstances of victims and witnesses, including children. These provisions call for the
Prosecutor of the ICC to “[t]ake appropriate measures to ensure the effective investigation and
prosecution of crimes within the jurisdiction of the [ICC in order to] respect the rights and
personal circumstances of victims and witnesses . . . , in particular where [the crime] involves . . .
violence against children.” 100 Additionally, as mentioned above in Part III.C, the ICC is required
to take measures necessary “to protect the safety, physical and psychological well-being, dignity
and privacy of [child] victims and witnesses.” 101
Beyond the above provisions, both the Rome Statute and the RPE contain more specific
provisions that assist the ICC in providing children with the level of protection that they need in
order to secure their safety, as well as their mental and physical health. For instance, the ICC is
permitted to conduct portions of proceedings in camera “or allow the presentation of evidence by
electronic or other special means.” 102 Additionally, Rule 75(1) states that if a child witness is the
son or daughter of the accused, they will “not be required by a Chamber to make any statement
that might tend to incriminate the accused” parent unless the child elects to make such a
statement. 103 Furthermore, while under Rule 66(1) “every witness” is required to take an oath
declaring that his or her testimony will be “the whole truth and nothing but the truth,” 104 Rule
66(2) makes a special exception for children, stating:
A person under the age of [eighteen] . . . who, in the opinion of the Chamber,
does not understand the nature of a solemn undertaking may be allowed to testify
without this solemn undertaking if the Chamber considers that the person is able
to describe matters of which he or she has knowledge and that the person
understands the meaning of the duty to speak the truth. 105
The Rome Statute also created a Victims and Witnesses Unit (“VWU”) to “provide . . .
protective measures and security arrangements, counselling and other appropriate assistance for
witnesses, victims who appear before the Court, and others who are at risk on account of
100 Rome Statute, supra note 59, at art. 54(1)(b).
101 Id. at art. 68(1). Rule 86 of the Rules of Procedure and Evidence bolsters this requirement. This rule states: “A Chamber in making
any direction or order, and other organs of the Court in performing their functions under the Statute or the Rules, shall take into
account the needs of all victims and witnesses in accordance with article 68, in particular, children . . . .” ICC Rules of Procedure and
Evidence, supra note 63, at R. 86.
102 Rome Statute, supra note 59, at art. 68(2). These protective measures should be implemented, “[ i]n particular, . . . in the case of . . .
a child who is a victim or a witness, unless otherwise ordered by the Court, having regard to all the circumstances, particularly the
views of the victim or witness.” Id. The Rules of Procedure and Evidence also address the use of in camera proceedings. See, e.g.,
Rules of Procedure and Evidence, supra note 63, at R. 87(3).
103 ICC Rules of Procedure and Evidence, supra note 63, at R. 75(1); Van de Voorde & Barberet, supra note 75, at 45.
104 ICC Rules of Procedure and Evidence, supra note 63, at R. 66(1).
105 Id. at R. 66(2). Some have questioned the legitimacy of this protective measure, particularly in light of the Lubanga case, which
involved child soldiers and thus, understandably included a number of child witnesses and victims. In Lubanga, “some witness
testimony [was] inaccurate [and] some of the witnesses [were] accused of coming to The Hague with [the] intention of providing false
testimony.” Sylvia Ngane, Should States Bear the Responsibility of Imposing Sanctions on Its Citizens Who as Witnesses Commit
Crimes before the ICC?, in EXPLORING THE BOUNDARIES OF INTERNATIONAL CRIMINAL JUSTICE 131 (Ralph Henham & Mark
Findlay eds., 2011). However, the common rebuttal is:
[T]he majority of children have the capacity to recall accurate and relevant information . . . [and that] there is
also no empirical evidence to support any contention that children lie more often than adults, or that they are
less capable of telling the truth. In fact, . . . literature reveals that by the time they are four, most children
understand the difference between truth and lies sufficiently to testify, although they may have difficulty
defining these concepts.
Stuart Beresford, Child Witnesses and the International Criminal Justice System: Does the International Criminal Court
Protect the Most Vulnerable?, 3 J. INT’L CRIM. JUST. 721, 739 (2005).