CCPR/C/112/D/1970/2010
efforts of his family, no prompt, impartial, thorough and independent investigation has been
carried out by the State party to clarify the victim’s fate and whereabouts and bring the
perpetrators to justice. In that respect, the Committee recalls its general comment No. 31
(2004) on the nature of the general legal obligation imposed on States parties to the
Covenant, according to which a failure by a State party to investigate allegations of
violations and bring to justice perpetrators of certain violations (notably torture and similar
cruel, inhuman and degrading treatment, summary and arbitrary killings and enforced
disappearances) could in and of itself give rise to a separate breach of the Covenant.
9.3
The authors do not allege that the State party was directly responsible for the
enforced disappearance of their husband and father. Indeed, the authors allege that he was
last seen in a portion of the State party’s territory controlled by the armed forces of a
foreign State, which did not recognize the independence of Bosnia and Herzegovina. What
happened thereafter is uncertain, and the authors also allege that other paramilitary forces
hostile to the State party were active in the vicinity. The Committee observes that the term
“enforced disappearance” may be used in an extended sense, referring to disappearances
initiated by forces independent of or hostile to a State party, in addition to disappearances
attributable to a State party.14 The Committee also notes that the State party does not
contest the characterization of the events as an enforced disappearance.
9.4
The Committee notes the State party’s information that it has made considerable
efforts at the general level, in view of the more than 30,000 cases of enforced disappearance
that occurred during the conflict. Notably, the Constitutional Court has established that the
authorities are responsible for the investigation of the disappearance of the applicants’
relatives, including Ramiz Kožljak (see para. 2.10 above); and domestic mechanisms have
been set up to deal with enforced disappearances and other war crimes cases (see
paragraph 4.2 above).
9.5
The Committee recalls its jurisprudence, according to which the obligation to
investigate allegations of enforced disappearances and to bring the culprits to justice is not
an obligation of result, but of means, and that it must be interpreted in a way which does
not impose an impossible or disproportionate burden on the authorities. 15 The Committee
further recognizes the particular difficulties that a State party may face in investigating
crimes that may have been committed on its territory by the hostile forces of a foreign
State. Therefore, while acknowledging the gravity of the disappearances and the suffering
of the authors, because the fate or whereabouts of their missing husband and father has not
yet been clarified and the culprits have not yet been brought to justice, that in itself is not
sufficient to find a breach of article 2, paragraph 3, of the Covenant in the particular
circumstances of the present communication
9.6
That being said, the authors claim that, at the time they filed their communication,
nearly 18 years since their missing husband and father was last seen, in an area where
enforced disappearances are known to have occurred in a systematic manner, and more than
3 years after the judgement of the Constitutional Court, the investigative authorities had not
contacted them for information regarding the disappearance of Ramiz Kožljak. In February
14
15
12
Compare article 7, paragraph 2 (i), of the Rome Statute of the International Criminal Court (defining
enforced disappearance as including disappearances conducted by a political organization), with
articles 2 and 3 of the International Convention for the Protection of All Persons from Enforced
Disappearance (distinguishing between enforced disappearances conducted by States or by persons or
groups acting with their authorization, support or acquiescence, and similar acts conducted by persons
or groups acting without such authorization, support or acquiescence); and see communication
No. 1956/2010, Durić v. Bosnia and Herzegovina, Views adopted on 16 July 2014, para. 9.3.
See communication No. 1997/2010, Rizvanović v. Bosnia Herzegovina, Views adopted on 21 March
2014, para. 9.5.