CCPR/C/115/D/2214/2012 7. It should be recalled that the Committee initially developed its jurisprudence in respect of article 16 in cases of enforced disappearances by referring to the definition of enforced disappearance in article 7, paragraph 2 (i) of the Rome Statute of the International Criminal Court. e However, that definition has been criticized with regard to the way it addresses the element of “removing [the persons] from the protection of the law for a prolonged period of time”. f Firstly, the definition in the Rome Statute transforms this circumstantial element into special intent; secondly, it adds the element of an unspecified time factor that is difficult to grasp; hence it must be possible to determine that the perpetrator(s) had the “intention of removing [the persons] from the protection of the law for a prolonged period of time ”. In any case, the definition in the Rome Statute establishes the elements of an international crime and is intended to engage individual criminal responsibility; while the Covenant, particularly its article 16, concerns the responsibility of the State under international law. In its Views of 10 July 2007 on the cases of Kimouche v. Algeria and Grioua v. Algeria, the Committee appears to use this definition, although it does transform it when, for the first time, it addresses the question of a violation of article 16 in the context of an enforced disappearance. It “points out that intentionally removing a person from the protection of the law for a prolonged period of time may constitute a refusal to recognize that person before the law if the victim was in the hands of the State authorities when last seen and, at the same time, if the efforts of his or her relatives to obtain access to potentially effective remedies, including judicial remedies (Covenant, art. 2, para. 3), have been systematically impeded.” g 8. In the following paragraph, however, the Committee adopts a different standard, more in line with the reality of the violation found: [The Committee] is of the view that, if a person is arrested by the authorities and there is subsequently no news of that person’s fate, the failure by the authorities to conduct an investigation effectively places the disappeared person outside the protection of the law. h __________________ e f g h GE.15-22873 For an internal critical appraisal of this approach, see the individual opinion (dissenting) of Christine Chanet, Rajsoomer Lallah, Michael O’Flaherty, Elisabeth Palm and Hipólito SolariYrigoyen attached to the decision on the Yurich v. Chile case, communication No. 1078/2002, inadmissibility decision adopted on 2 November 2005, p. 10. See particularly in the literature: Federico Andreu -Guzmán, “The Draft International Convention on the Protection of All Persons from Forced Disappearance”, ICJ Review. Impunity, crimes against humanity and forced disappearance, No. 62-63, Geneva, September 2001; Tullio Scovazzi and Gabriella Citroni, The Struggle against Enforced Disappearance and the 2007 United Nations Convention, Martinus Nijhoff Publishers, 2007, pp. 273 et seq.; Gabriella Citroni, “When is it enough? Enforced Disappearance and the ‘Temporal Element’”, Droits fondamentaux, No. 9, January 2011-December 2012. See also the report submitted by Manfred Nowak, independent expert for the Commission on Human Rights (E/CN.4/2002/71), para. 69; and the general comment of the Working Group on Enforced or Involuntary Disappearances on the definition of enforced disappearance (A/HRC/7/2), paragraph 5. On the travaux préparatoires for the International Convention for the Protection of All Persons from Enforced Disappearances and the rejection of the element of intent in the definition of enforced disappearance: Marthe Lot Vermeulen, Enforced Disappearance. Determining State Responsibility under the International Convention for the Protection of All Persons from Enforced Disappearance, Intersentia, 2012, p. 56 et seq.; Olivier de Frouville, “La Convention des Nations Unies pour la protection de toutes les personnes contre les disparitions forcées: Les enjeux juridiques d´une négociation exemplaire” (The International Convention for the Protection of All Persons from Enforced Disappearance: the legal stakes in model negotiations), Droits fondamentaux, No. 6, January-December 2006, pp. 16 and 17. See communication No. 1328/2004, Messaouda Kimouche née Cheraitia and Mokhtar Kimouche v. Algeria, Views adopted on 10 July 2007, para 7.8; and communication No. 1327/2004, Grioua v. Algeria, Views adopted on 10 July 2007, para. 7.8. See also communication No. 1495/2006, Zohra Madaoui v. Algeria, Views adopted on 28 October 2008. (Emphasis added.) Views in the cases of Kimouche v. Algeria and Grioua v. Algeria, cited in the previous note, para. 7.9. 15/17