IV. BEST PRACTICES FOR CHILD TESTIMONY IN INTERNATIONAL COURTS
It is acknowledged that “[e]mbracing . . . child-cent[e]red, child-enabling and child
empowering values underlying participation” is not, in and of itself, enough. 113 “Enthusiastic
[child] participation projects have not always used appropriate methods, nor been based on a
sufficiently elaborated conceptual framework[; rather, numerous child participation projects have]
over-reli[ed] on compelling but ultimately [over-]simplistic models.” 114 For this reason, it is
necessary to critically assess participatory and protective measures that courts like the ICC take
with regards to child witnesses. The discussion in this Part is necessarily limited to a general view
of what the ICC seems to have done correctly and where there may be room for improvement.
Because the types of measures necessary, as well as their effectiveness, will vary based on each
individual child’s sensitivities and circumstances, this Part does not attempt to assert that a basic,
set framework should be employed with regard to every child witness or victim. Rather, it looks
at which innovative practices, either currently employed by the ICC or not, seem to best uphold
the principles of participation and protection enshrined in the CRC.
A. The Definition of Victim
The ICC has taken a number of very positive measures in its efforts to provide
individuals, and children in particular, with safe and adequate participation rights. These practices
begin at the onset—with the definition of who victims of crimes under the ICC’s jurisdiction
are—and continue through the processes and procedures that the ICC employs with regards to
The ICC definition of “victim” seems sufficiently broad to provide children with requisite
participation rights. The broad definition of victim embraced by the ICC, and discussed in Part
III.A, allows more children the opportunity to be heard in matters affecting them. 115 Thus,
children will be able to testify if the abuses being investigated and prosecuted by the ICC were
perpetrated directly against them, as well as in situations where the abuses have been perpetrated
against their immediate family members or those individuals on whom they are dependent. 116 The
broad understanding of who victims of crimes are should not only be maintained by the ICC but
also adopted by other international courts and bodies that wish to promote and advance the right
of the child to be heard.
B. Measures Taken to Elicit Child Testimony and Provide Protections During an Investigation or
The ICC has many mechanisms in place that can provide layers of protection to child
witnesses. All of these measures seem both well-intentioned and, if properly executed, effective.
For this reason, the measures that the ICC has in place117 should continue—namely: the ability to
conduct proceedings in camera “or allow [for] the presentation of evidence by electronic or other
special means”; 118 the ability of children to elect whether to testify against the accused when the
113 Martin Woodhead, Foreword to A HANDBOOK OF CHILDREN AND YOUNG PEOPLE’S PARTICIPATION: PERSPECTIVES FROM THEORY
AND PRACTICE xix, xxi (Barry Percy-Smith & Nigel Thomas eds., 2010).
115 de Brouwer & Groenhuijsen, supra note 15, at 157 (noting “that the ICC definition of victims as contained in Rules 85 . . . offers
the best possible protection of the rights and interests of the victim, e.g., to be informed of his or her rights and opportunities, to seek
reparation and to participate in proceedings”).
116 See supra Part III.A.
117 See discussion supra Part III.E.