The CRC explicitly recognizes that children have a right to be heard. This basic right is
enshrined in Article 12, which states:
1. States Parties shall assure to the child who is capable of forming his or
her own views the right to express those views freely in all matters affecting the
child, the views of the child being given due weight in accordance with the age
and maturity of the child.
2. For this purpose, the child shall in particular be provided the
opportunity to be heard in any judicial and administrative proceedings affecting
the child, either directly, or through a representative or an appropriate body, in a
manner consistent with the procedural rules of national law.23
In instances where serious crimes have been perpetrated against or experienced by a
child, Article 12 requires that children be given the right to participate in any and all proceedings
affecting them if they are “capable of forming [their] own views.”24 The Committee on the Rights
of the Child emphasized that a child’s right “to be heard and taken seriously” was one of the
CRC’s four fundamental principles.25 By establishing that the right to be heard was an essential
right, the CRC “expresses . . . respect for the child as an autonomous person”26 and “recogni[zes
that] the child [ i]s a full human being, with integrity and personality, and with the ability to
participate fully in society.”27
Children have the right to be heard on any issues that influence their life.28 As Article
12(2) mentions above, this right exists in both administrative and judicial proceedings.
Furthermore, the ability to exercise this right is not dependent on whether or not a child initiated
the proceedings: “[t]he right to be heard applies to both proceedings which are initiated by the
child . . . as well as those initiated by others which affect the child.”29 Such proceedings include
those involving “victims of armed conflict and other emergencies.”30
The right to be heard is one that children may or may not choose to assert31 and one that
should not be limited based on the age of a child.32 Additionally, while children may exercise
support mechanisms which enable children, in particular adolescents, to play an active role in both post-emergency reconstruction and
post-conflict resolution processes.” Id. ¶ 126.
Graça Machel also addressed the need to include children in the transitional justice process, stating:
Having been witnesses and victims of the crimes of war, children have a key role in addressing those crimes and
in reconciliation and peace-building processes in their communities. Children and adolescents contribute a
tremendous pool of capacity, energy, ideas and creativity, and as countries emerge from societal or political
violence, that vital human resource is urgently needed.
Graça Machel, Foreword to CHILDREN AND TRANSITIONAL JUSTICE: TRUTH-TELLING, ACCOUNTABILITY AND RECONCILIATION viii,
x (Sharanjeet Parmar et al. eds., 2010).
23 CRC, supra note 2, at art. 12.
24 See, e.g., id.
25 Gen. Cmt. No. 12, supra note 22, ¶ 2. Another one of the four overarching principles of the CRC is that primary consideration
should be given to the best interests of the child, a principle, discussed infra Part II.B, which essentially calls for the additional layers
of protection for child witnesses and victims that have been adopted by international courts and truth commissions.
26 Eva Brems, Children’s Rights and Universality, in DEVELOPMENTAL & AUTONOMY RIGHTS OF CHILDREN: EMPOWERING
CHILDREN, CAREGIVERS AND COMMUNI TIES 11, 19 (Jan C. M. Willems ed., 2d ed. 2007).
27 Id. (internal quotation marks omitted); see also ANNA HOLZSCHEITER, CHILDREN’S RIGHTS IN INTERNATIONAL POLITICS: THE
TRANSFORMATIVE POWER OF DISCOURSE 86 (2010) (noting that Article 12 is important because it “transforms the identity of the child
targeted by the [CRC] from a mute beneficiary to a social agent”).
28 Gen. Cmt. No. 12, supra note 22, ¶ 18.
29 Id. ¶ 33. Additionally, these proceedings are not limited to traditional adversarial settings, but also are considered to encapsulate
“alternative dispute mechanisms such as mediation and arbitration.” Id. ¶ 32.
30 Id. ¶ 32.
31 Id. ¶ 16. Article 12(1) of the CRC states that children have “the right to express [their] views freely.” Id. ¶ 22. The Committee on the
Rights of the Child has said that this provision of the CRC “means that [children] can express [their] views without pressure and can