redress or help alleviate such harm.12 In providing children with the right to be heard, however, it
is also important to take into account the need to prevent children from being subjected to threats,
retraumatization, or other forms of harm. Both the right to be heard and the duty to protect, by
acting in “the best interests of the child,” are recognized in the CRC; these issues are discussed
A. A Child’s Right to Testify in Proceedings
Participation may be defined as “the process of sharing decisions which affect one’s life
and the life of the community in which one lives.”13 There is a common belief “[t]hat victims who
suffered heinous crimes deserve special attention in international criminal trials by being
accorded participatory rights.”14 This view seems to have emerged as the international perception
of crime has evolved. Initially, “crime was seen primarily as a violation of the public order, as an
offense against the common good.”15 However, during the last quarter of the twentieth century,
the view of crime changed, and the international understanding of crime, while acknowledging
that there are public interest factors at play, has evolved to view crime “first and foremost . . . as
an infringement of the individual rights and interests of the victim.”16 This perspective requires
justice to not only involve “punishing offenders” but also to “pay attention to the needs and
interests of the individuals whose rights have been violated and who have suffered loss.”17
The above views and principles extend to all members of society, regardless of age. The
application of the right to participate to children has been spurred by two major developments
that have occurred over the past twenty or more years. First, social theories have emerged that
view “children as social actors in their own right, not simply as the objects of sociali[z]ation.”18
Second, and more notably for purposes of this Article, is the influence of the CRC—an
instrument that asserts children have a right to “a voice in decision making, as well as rights to
freedom of thought and expression.”19
Additionally, it is generally acknowledged that providing children with the right to be
heard can help protect other rights,20 help children “come to terms with their experiences [, give
children] a sense of pride in their contribution,”21 and promote a more peaceful future in societies
emerging from conflict. Indeed, child participation has helped to curb violations of children’s
rights and assist in “post-conflict resolution and reconstruction processes.”22
12 Id. at 58 (“Growing up in a stressful situation, experiencing trauma, or even pervasive trauma, obviously has its effects on the
physical, psychological and social development of the child. Often, we cannot see the damage unless we take a close look and listen to
13 Yanghee Lee, Child Participation and Access to the United Nations Convention on the Rights of the Child, in INTERNATIONAL
JUSTICE FOR CHILDREN 105, 107 (Council of Europe ed., 2008) (referencing Roger Hart’s definition for participation).
14 CHRIS TINE SCHUON, IN TERNATIONAL CRIMINAL PROCEDURE: A CLASH OF LEGAL CULTURES 293 (2010).
15 Anne-Marie de Brouwer & Marc Groenhuijsen, The Role of Victims in International Criminal Proceedings, in INTERNATIONAL
CRIMINAL PROCEDURE: TO WARDS A COHERENT BOD Y OF LA W 149, 151 (Göran Sluiter & Sergey Vasiliev eds., 2009).
17 Id. at 151–52.
18 Nigel Thomas & Barry Percy-Smith, Introduction to A HANDBOOK OF CHILDREN AND YOUNG PEOPLE’S PARTICIPATION:
PERSPECTIVES FROM THEORY AND PRACTICE 1 (Barry Percy-Smith & Nigel Thomas eds., 2010); Andrew West, Children and
Participation: Meanings, Motives and Purpose, in HAVING THEIR SAY: YOUNG PEOPLE AND PARTICIPATION: EUROPEAN
EXPERIENCES 14, 14 (David Crimmens & Andrew West eds., 2004).
19 Thomas & Percy-Smith, supra note 18, at 1; West, supra note 18, at 14.
20 See, e.g., Gerison Lansdown, The Realization of Children’s Participation Rights: Critical Reflections, in A HANDBOOK OF
CHILDREN AND YOUNG PEOPLE’S PARTICIPATION: PERSPECTIVES FROM THEORY AND PRACTICE 11, 13 (Barry Percy-Smith & Nigel
Thomas eds., 2010) (“Participation is a fundamental rights in itself. It is also a means through which to realize other rights.”).
21 Pais, supra note 10, at 57 (discussing the ways in which children believed their participation in the truth and reconciliation
commissions in Sierra Leone benefitted them).
22 Comm. on the Rights of the Child, Gen. Cmt. No. 12 (2009): The Right of the Child to be Heard, ¶¶ 122, 125, U.N. Doc
CRC/C/GC/12 (July 20, 2009) [hereinafter Gen. Cmt. No. 12]. For this reason, “the Committee [has] encourage[d] States [P]arties to