Balancing a Child’s Right to be Heard with Protective Measures
Undertaken in “the Best Interests of the Child”:
Does the International Criminal Court Get it Right?
By Naila S. Awan*
Issues involving children’s rights often require the balancing of competing interests in
order to determine what course of action is in “the best interests of the child.” Determining the
extent of a child’s right to participate in judicial and administrative proceedings, such as criminal
trials before the International Criminal Court (“ICC”), is one example of a situation in which a
balancing of children’s interests is required.
Traditionally, criminal courts have focused on “protecting the rights of the accused adult
rather than enabling children to participate optimally as witnesses in court within their
developmental capabilities.”1 The United Nations Convention on the Rights of the Child (“CRC”)
recognized the general disregard for the needs of child victims and witnesses and sought to
remedy these shortcomings through provisions that address a child’s right to participation and the
need for courts, administrative tribunals, and other public and private actors to take “the best
interests of the child” into consideration in their operations.2 The Convention acknowledges that
when children are testifying before a tribunal, one must consider: the ability of an individual child
based on his or her evolving capacities to handle the situation, what structures or procedures
would be appropriate for a child, and what measures could help to prevent retraumatization,
redress harm, and empower the child.3 These considerations seem particularly potent in instances
where a court, like the ICC, is addressing widespread human rights abuses.
Courts and other bodies addressing human rights or other abuses suffered by children
have internalized the CRC’s balancing requirements. These bodies have widely recognized the
need to ensure that children have a right to participate in proceedings, while also accounting for
the fact that certain protective measures should be implemented in order to guarantee that the
proceedings are not unnecessarily traumatic.4 The procedures may vary depending on a child’s
age, maturity, and overall ability to handle the situation.5
This Article aims to determine if the approach that the ICC has adopted with regard to
child witnesses conforms to the principles of participation and protection outlined in the CRC. It
asks if the methods that the ICC has taken with regard to child victims and witnesses are enough,
LL.M. in International Legal Studies, New York University School of Law; J.D., The Ohio State University, Moritz College of Law.
1 Kay Bussey, An International Perspective on Child Witnesses, in CHILDREN AS VICTIMS, WITNESSES, AND OFFENDERS 209, 212
(Bette L. Bottoms et al. eds., 2009).
2 See, e.g., United Nations Convention on the Rights of the Child art. 3(1), Nov. 20, 1989, 1577 U.N. T.S. 3 [hereinafter CRC]; Comm.
on the Rights of the Children, Gen. Cmt. No. 14 (2013) on the Right of the Child to Have His or Her Best Interests Taken as a Primary
Consideration (art. 3, para. 1), ¶¶ 25–40, U.N. Doc CRC/C/GC/14 (May 29, 2013).
3 See infra Part II.
4 For instance, in the United States the need to protect children who are testifying in criminal trials has sometimes outweighed a
defendant’s rights under the Confrontation Clause: U.S. courts have allowed children to provide video testimony in instances where
testifying before the defendant may prove too traumatic so long as other due process guarantees are followed. See, e.g., Maryland v.
Craig, 497 U.S. 836, 856–57 (1990). The international community has also recognized the need to protect children who are giving
testimony before commissions and tribunals. See infra Parts III, IV (describing the efforts that have been undertaken by the ICC to
allow children to participate in proceedings and provide child victims and witnesses with necessary protections and outlining some of
the efforts that truth commissions have made to balance a child’s right to participation and protection).