CCPR/C/113/D/2022/2011 Appendix I Individual opinion of Committee member Anja Seibert-Fohr (concurring) 1. The main issue of this case is the extent to which Bosnia and Herzegovina incurred responsibility for insufficient remedies in response to an enforced disappearance that the authors of the communication do not attribute to the State party. The Committee has found a violation of articles 6, 7 and 9, read in conjunction with article 2 (3) of the Covenant, with regard to Husein Hamulić, and of article 7, read alone and in conjunction with article 2 (3), of the Covenant with regard to the authors. I concur with this conclusion, which is consistent with the Committee’s earlier Views. I write separately to explain the legal reasons why the authors’ additional claim under article 16, read in conjunction with article 2 (3), of the Covenant is not substantiated. 2. Pursuant to article 2 (3) (a), each State party undertakes to ensure that any person whose rights or freedoms are violated shall have an effective remedy. According to the Committee’s long-established jurisprudence, article 2 (3) does not provide for an independent, free-standing right but can only be invoked by individuals in conjunction with other articles of the Covenant.a It requires an arguable, well-founded claim of a violation of a substantive right.b Therefore, the author of a communication claiming a violation of article 2 (3), read in conjunction with article 16, of the Covenant needs to substantiate a claim against the respective State party under article 16 or otherwise relate it to the State party. 3. In the present case, the authors asked the Committee to find that the State party had violated the obligation to provide an effective remedy for a violation of article 16 of the Covenant. They did not allege that the enforced disappearance of Mr. Hamulić was attributable to Bosnia and Herzegovina but rather to armed forces that opposed it. Without a further basis for connecting the State party to the disappearance, the authors have not substantiated their claims that the State party violated article 16, read in conjunction with article 2 (3) of the Covenant. 4. This issue is different from the claims under articles 6, 7 and 9. The right to life, the prohibition of torture, cruel, inhuman or degrading treatment or punishment and the right to liberty and security of person require positive measures of protection irrespective of whether the actual atrocity is connected to the State party. It is implicit in article 7 that States parties have to take positive measures to ensure that private persons or entities do not inflict torture or cruel, inhuman or degrading treatment or punishment on others within their power.c The nature of this obligation differs from that of article 16, which obliges States parties to guarantee the right to recognition as a person before the law. The fact that an enforced disappearance has occurred in the State’s territory does not imply that the State party has violated article 16 when the disappearance is not attributable to it, nor does it a b c 14 See S.E. v. Argentina, communication No. 275/88, para. 5.3. See Kazantzis v. Cyprus, communication No. 972/2001, para. 6.6. See general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, para. 8.