36/54 Report of the Commission of Inquiry on Burundi

GE.17-13865 (E) 310817 110917



Human Rights Council Thirty-sixth session

11-29 September 2017

Agenda item 4

Human rights situations that require the Council’s attention

Report of the Commission of Inquiry on Burundi*

Summary

The Commission of Inquiry on Burundi was created by Human Rights Council

resolution 33/24, adopted on 30 September 2016, to conduct a thorough investigation into

human rights violations and abuses committed in Burundi since April 2015, to determine

whether any of them may constitute international crimes and to identify their alleged

perpetrators.

The Commission can confirm the persistence of extrajudicial executions, arbitrary

arrests and detentions, enforced disappearances, torture and cruel, inhuman or degrading

treatment and sexual violence in Burundi since April 2015. Most of these violations were

committed by members of the National Intelligence Service, the police, the army and the

youth league of the ruling party, commonly known as the Imbonerakure. The Commission

emphasizes the scope and the gravity of the documented violations, which, in some

instances, entailed serious physical and psychological trauma for the victims. Human rights

abuses were also committed by armed opposition groups, but these proved difficult to

document.

The Commission has reasonable grounds to believe that crimes against humanity

have been committed in Burundi since April 2015.

Without a real willingness on the part of the Burundian authorities to combat

impunity and guarantee the independence of the judiciary, the perpetrators of these crimes

will remain unpunished. The Commission therefore requests the International Criminal

Court to initiate, as soon as possible, an investigation into the situation in Burundi since

April 2015.

* The annexes to the present document are being circulated in the language of submission only.

United Nations A/HRC/36/54

General Assembly Distr.: General 11 August 2017

English

Original: French

2 GE.17-13865

Contents

Page

I. Introduction ................................................................................................................................... 3

A. Mandate ................................................................................................................................ 3

B. Cooperation by Burundi with the Commission ..................................................................... 3

C. Methodology ......................................................................................................................... 3

D. Applicable law ...................................................................................................................... 4

II. Human rights situation .................................................................................................................. 4

A. Main trends ........................................................................................................................... 4

B. Responsibility ....................................................................................................................... 5

C. Human rights violations and abuses ..................................................................................... 8

III. International crimes ....................................................................................................................... 13

A. Crimes against humanity ...................................................................................................... 13

B. Genocide ............................................................................................................................... 16

C. Individual responsibility ....................................................................................................... 16

D. Accountability mechanisms .................................................................................................. 16

IV. Conclusions and recommendations ............................................................................................... 16

A. Main conclusions .................................................................................................................. 16

B. Recommendations ................................................................................................................. 17

Annexes

I. Map of Burundi ............................................................................................................................. 20

II. Correspondence with the Government of Burundi ........................................................................ 21

GE.17-13865 3

I. Introduction

A. Mandate

1. The Commission of Inquiry on Burundi (hereinafter “the Commission”) was created

for a period of one year by Human Rights Council resolution 33/24, adopted on 30

September 2016, to conduct a thorough investigation into human rights violations and

abuses committed in Burundi since April 2015 and, in particular, to assess their extent,

determine whether they constitute international crimes, identify their alleged perpetrators

and formulate recommendations on steps to be taken with a view to guaranteeing that the

latter, regardless of their affiliation, are held accountable for their acts.

2. On 22 November 2016, the President of the Human Rights Council appointed Fatsah

Ouguergouz (Algeria), Reine Alapini Gansou (Bénin) and Françoise Hampson (United

Kingdom) as members of the Commission, which was chaired by Mr. Ouguergouz. The

Commission members were assisted by a secretariat established by the Office of the United

Nations High Commissioner for Human Rights.

3. The Commission presented two oral briefings during the thirty-fourth and thirty-fifth

sessions of the Human Rights Council in March and June 2017. The present report

summarizes the final conclusions of its investigations, which will be detailed in a separate

document.1

B. Cooperation by Burundi with the Commission

4. In its resolution 33/24, the Human Rights Council urged the Government of Burundi

to cooperate fully with the Commission of Inquiry, to authorize it to conduct visits to the

country and to provide it with all the information necessary to fulfil its mandate.

Notwithstanding that request, the Government of Burundi refused any form of dialogue or

cooperation with the Commission in spite of several initiatives by the latter.

5. In fact, as of the completion of the present report, the Commission had sent three

notes verbales to the Permanent Mission of Burundi in Geneva and two letters to the

Minister for Foreign Affairs.2 It requested the Burundian authorities to grant it access to the

country and to inform it of their views on the human rights situation in Burundi,

particularly in regard to attacks against agents of the State or members of the ruling party.

These requests have gone unanswered.

C. Methodology

6. Following the practice of other commissions of inquiry which had been denied

access to the territory covered by their mandate, the Commission visited neighbouring

countries (Uganda, the Democratic Republic of the Congo, Rwanda and the United

Republic of Tanzania) and other countries hosting Burundian refugees. These visits, as well

as numerous contacts from a distance, enabled the Commission to conduct more than 500

interviews with victims, witnesses and other sources.

7. The Commission adopted the same standard of proof as most of the commissions of

inquiry on human rights, namely “reasonable grounds to believe”. It therefore took care to

collect a body of reliable and consistent information on the basis of which a reasonable and

ordinarily prudent person would have reason to believe that an incident or pattern of

conduct had occurred.

8. In addition to the lack of cooperation on the part of the Government and the latter’s

refusal to grant it access to the country, the Commission was faced with the difficulty of

1 Detailed final report of the Commission of Inquiry on Burundi.

2 See annex II.

4 GE.17-13865

conducting an inquiry on Burundi when victims and witnesses are still afraid to talk about

their experiences. In the short period of time allotted to it, the Commission could not

conduct a thorough investigation of certain cases and cover all the violations and abuses. It

was nevertheless able to document a significant sample.

D. Applicable law

9. Burundi is a party to seven of the principal international human rights instruments:

the International Covenant on Civil and Political Rights, the International Covenant on

Economic, Social and Cultural Rights, the International Convention on the Elimination of

All Forms of Racial Discrimination, the Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment and the Optional Protocol thereto, the

Convention on the Elimination of All Forms of Discrimination against Women, the

Convention on the Rights of the Child and the two Optional Protocols thereto, and the

Convention on the Rights of Persons with Disabilities and the Optional Protocol thereto. It

is also a party to the African Charter on Human and Peoples’ Rights and other relevant

African instruments.

10. Burundi has ratified the Convention on the Prevention and Punishment of the Crime

of Genocide and, since 2004, has been a party to the Rome Statute of the International

Criminal Court.3 However, on 27 October 2016, it notified the Secretary-General of the

United Nations of its decision to withdraw from the latter treaty. Since such withdrawal

does not take effect until one year has elapsed, that notification did not affect the work of

the Commission, which conducted its juridical analysis using the definition of crimes

contained in the Rome Statute.

11. The Commission did not regard international humanitarian law as being applicable

within the framework of its mandate insofar as, given the sporadic nature of the attacks

carried out or claimed by armed groups in Burundi since April 2015, the existence of a non-

international armed conflict could not be inferred therefrom.4

II. Human rights situation

A. Main trends

12. The political crisis that Burundi has faced since 2015 has been compounded by a

grave human rights crisis. Although warning signs of that situation had been observed

before 25 April 2015,5 President Pierre Nkurunziza’s announcement on that date of his

decision to seek a new term in office was followed by a significant deterioration in the

human rights situation. The Commission documented violations that were frequently of an

extremely cruel nature, particularly extrajudicial executions, arbitrary arrests and

detentions, enforced disappearances, acts of torture and other cruel, inhuman or degrading

treatment and sexual violence. Such violations had already been reported by the United

3 On 25 April 2016, the Prosecutor of the International Criminal Court opened a preliminary

examination to determine whether crimes falling within the Court’s jurisdiction had been committed

in Burundi.

4 Article 1, paragraph 2, of the Protocol additional to the Geneva Conventions of 12 August 1949, and

relating to the protection of victims of non-international armed conflicts, stipulates that “this Protocol

shall not apply to […] isolated and sporadic acts of violence and other acts of a similar nature, as not

being armed conflicts”.

5 Inter alia by the Human Rights Committee, the Committee against Torture, the Special Rapporteur on

the promotion of truth, justice, reparation and guarantees of non-recurrence and the Special

Rapporteur on the situation of human rights defenders.

GE.17-13865 5

Nations High Commissioner for Human Rights, 6 the United Nations independent

investigation on Burundi7 and the African Commission on Human and Peoples’ Rights.8

13. The large number of testimonies collected by the Commission clearly show that the

demonstrations which began in April 2015, the failed coup d’état in May 2015 and the

attacks against four military installations in and around Bujumbura on 11 December 2015

constituted decisive stages in the escalation of violence in 2015. This climate conducive to

human rights violations continued in 2016 and 2017, maintained by hate speech on the part

of the authorities and members of the ruling party — the Conseil national pour la défense

de la démocratie-Forces de défense de la démocratie (CNDD-FDD) — and also by the

pervasive impunity that was aggravated by a judiciary lacking independence. Some

violations have been committed in a more clandestine, but equally brutal, manner since

2016.

14. The victims, mostly young men (with the exception of victims of sexual violence),

were invariably opponents of the Government or perceived as such: demonstrators against

Pierre Nkurunziza’s candidature in the presidential election of 2015; members of opposition

political parties, particularly the Mouvement pour la solidarité et la démocratie, and the

Forces nationales de libération, as well as their relatives; members of the former Burundian

Armed Forces (“ex-FAB”);9 members of civil society; journalists; persons suspected of

supporting or participating in the failed coup; and members and sympathizers of armed

opposition groups or persons who, having gone into exile, were thereby suspected of

joining those groups. The Commission also noted a phenomenon of recruitment of the

population into CNDD-FDD and its youth league, the Imbonerakure. Any resistance often

led to human rights violations.

15. The Commission’s interviews revealed a climate of deep and widespread fear: fear

of testifying in view of the risk of reprisals, fear of persecution, even in exile, and fear of

returning to the country. In mid-July 2017, the Burundian refugee population was estimated

at 417,098 persons, 10 i.e. around 4 per cent of the country’s total population. Many

members of civil society, as well as journalists, remain in exile and international arrest

warrants have been issued against some of them. Those who are still in Burundi have to

work underground. The Government has suspended or revoked the licences of the principal

independent media and human rights organizations.

16. The violations of civil and political rights have had a direct impact on the enjoyment

of economic, social and cultural rights due to the restriction of freedoms, particularly

freedom of movement, and the decision taken by the main donors to suspend much of their

direct aid to the Government as a consequence of those violations. The deteriorating

economic situation has, in turn, exacerbated the phenomenon of extortion, which has taken

various forms, including ransom demands by agents of the State, the release of detainees in

exchange for payment, the imposition of new taxes on an already impoverished population,

and extortion by Imbonerakure.

B. Responsibility

1. The State’s responsibility for the conduct of its organs

17. Under international law, including human rights law, the State is responsible for the

conduct of its organs regardless of whether they exercise legislative, executive, judicial or

any other functions, whatever position they hold in the organization of the State and

6 See A/HRC/32/30.

7 See A/HRC/33/37.

8 Report of the African Commission on Human and Peoples’ Rights on its fact-finding mission to

Burundi (7-13 December 2015).

9 The term “ex-FAB” refers to members of the former Burundian Armed Forces, the majority of whom

were Tutsis. The Burundian army found itself in a deeply divided state after the attempted coup in

May 2015 and this led to marginalization of the “ex-FAB” and their subjection to human rights

violations.

10 Office of the United Nations High Commissioner for Refugees, 20 July 2017.

6 GE.17-13865

whatever their character as an organ of the central Government or of a territorial unit of the

State.11 The Commission was able to ascertain that, since April 2015, the defence and

security forces have been the principal perpetrators of human rights violations in Burundi,

even when they acted jointly with non-State actors such as the Imbonerakure.

18. Members of the National Intelligence Service, including senior officials, in

Bujumbura and in several provinces have committed acts for which the State can be held

responsible, including extrajudicial executions, arbitrary arrests and detentions, enforced

disappearances, acts of torture and cruel, inhuman or degrading treatment and sexual

violence. The National Intelligence Service reports directly to the President of the Republic

and its operations are managed by an Administrator General.

19. The Burundian National Police have played an active role since the first

demonstrations against President Nkurunziza’s candidature for a new term in office. Since

April 2015, police officers have committed summary executions, arbitrary arrests and

detentions, enforced disappearances, acts of torture and cruel, inhuman or degrading

treatment and sexual violence. Some units, including the Unit for the Protection of

Institutions (Appui à la protection des institutions) and the Anti-Riot Brigade, which was

established in September 2015, have been particularly implicated in gross violations of

human rights.

20. The Burundian army (National Defence Force), which kept a low profile at the

beginning of the crisis, has played an increasingly active role in the repression of real or

presumed opponents. In the testimonies collected by the Commission, military personnel

have been identified as the alleged perpetrators of summary executions, arbitrary arrests,

torture and cruel, inhuman or degrading treatment. Among the units involved in grave

violations of human rights, the Commission has identified the Special Brigade for the

Protection of Institutions, the Combat Engineer Battalion (Camp Muzinda) and the Support

Battalion of the First Military Region (Camp Muha) in Bujumbura.

21. The Commission also documented cases in which local administrative authorities

committed or ordered the commission of human rights violations, including arbitrary

arrests.

22. A number of testimonies showed that, in reality, the State operates largely through a

parallel structure based on personal ties inherited from the time when certain CNDD-FDD

authorities were waging an underground armed struggle; these ties were strengthened in

response to the opposition of some party members who, starting in 2014, had said they were

not in favour of a new term in office for President Nkurunziza.12 Major decisions, including

those that have given rise to gross violations of human rights, are allegedly taken not by the

Government but by the President and his entourage of “generals”, including the Minister of

Public Security, the Administrator General of the National Intelligence Service, the heads

of the President’s civil cabinet and office of police affairs, and the Secretary General of

CNDD-FDD. This entourage apparently transmits its decisions through a parallel chain of

command, the structure of which varies from one branch and one province to another, with

the result that subordinates might sometimes hold more power than their superiors. For

example, the Commission ascertained that the Deputy Inspector General of the Police had

more power than the Inspector General.

2. Responsibility of the State for the conduct of non-State individuals or groups

23. Under international law, including human rights law, the State may be held

generally responsible for the wrongful conduct of non-State individuals or groups when the

latter are acting in “complete dependence”13 on the State. It might also be held responsible

11 Article 4, paragraph 1, of the articles on responsibility of States for internationally wrongful acts

(General Assembly resolution 56/83).

12 Many high-ranking CNDD-FDD members informed President Nkurunziza of their opposition to his

candidature in the 2015 election. Most of them were subsequently forced to flee the country out of

concern for their safety.

13 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia

and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007.

GE.17-13865 7

in cases in which non-State individuals or groups act on its instructions or under its

direction or its “effective control”14 and also when its own agents acknowledge and adopt

the conduct of non-State groups. 15 Bearing these principles in mind, the Commission

examined the question of the responsibility of the Burundian State for the acts committed

by Imbonerakure, whose involvement in extrajudicial executions, arbitrary arrests and

detentions, enforced disappearances and acts of torture and cruel, inhuman or degrading

treatment and sexual violence it was able to document.

24. The Commission cannot infer the “complete dependence” of the Imbonerakure on

the Burundian State, as this would imply “a particularly great degree of State control over”

the persons or entities in question.16 A certain alignment17 of the Imbonerakure (and, more

generally, of CNDD-FDD) with the Government’s policy should nevertheless be

emphasized.

25. The Commission was, however, able to establish that members, including senior

officials, of the National Intelligence Service, the police, the army and the President’s

office have close ties to some Imbonerakure, to whom they give instructions or directives to

commit human rights violations.

26. In some cases, the Commission was also able to establish the exercise of “effective

control” by agents of the State over some Imbonerakure. Numerous witnesses testified that

Imbonerakure were present alongside police and intelligence officers, including in

detention centres, when violations were committed and that Imbonerakure were seen

wearing the same uniforms and carrying the same weapons as the police or the army in the

presence and in full view of members of those forces. Moreover, as far as the Commission

is aware, very few Imbonerakure have been prosecuted or convicted, and this, in itself, is

indicative of a certain degree of indulgence on the part of the Burundian authorities which

suggests the existence of a form of control.

27. The Commission also received reports to the effect that some Imbonerakure arrested

individuals and handed them over to the National Intelligence Service or the police. This

indicates that their conduct was acknowledged and adopted by the authorities.

3. Responsibility of armed opposition groups

28. The Commission received reports concerning targeted attacks by armed opposition

groups against military and police posts, as well as more large-scale attacks such as those in

Kayanza Province in July 2015 and in and around Bujumbura on 11 December 2015. On

the other hand, the Commission was unable to obtain information concerning attacks

against civilians by organized armed groups with a known structure. The obstacles to these

investigations were partly attributable to the difficulty of gaining access to witnesses, many

of whom are in Burundi, and to the fact that the Burundian Government shared no

information with the Commission.

14 See article 8 of the articles on responsibility of States for internationally wrongful acts; Military and

Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,

Judgment, I.C.J. Reports 1986; and Application of the Convention on the Prevention and Punishment

of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J.

Reports 2007.

15 Article 11 of the articles on responsibility of States for internationally wrongful acts. In its general

comment No. 3 on the African Charter on Human and Peoples’ Rights: The Right to Life (Article 4),

the African Commission on Human and Peoples’ Rights expressed the view that a State could be held

responsible for killings by non-State actors if it approved, supported or acquiesced in those acts.

16 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia

and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007.

17 The International Court of Justice nevertheless requires “systematic alignment” in order to

demonstrate “complete dependence” (ibid.).

8 GE.17-13865

C. Human rights violations and abuses

1. Right to life

29. The Commission received numerous testimonies concerning violations of the right

to life for which the Burundian State can be held responsible. These violations include

excessive use of deadly force by the defence and security forces during the demonstrations

between April and June 2015. In some cases, the police allegedly took action following acts

of violence by demonstrators which led to the death of police officers and members of the

ruling party.18 Members of the Unit for the Protection of Institutions (Appui à la protection

des institutions), the Anti-Riot Brigade and the Combat Engineer Battalion also committed

extrajudicial executions in some neighbourhoods of Bujumbura, including on 13 October

2015 in Ngagara and on 31 October 2015 in Buringa (Bubanza Province). In reprisal for

armed attacks against several military positions in Bujumbura and Mujejuru (Bujumbura

Province) on 11 December 2015, police and military personnel summarily executed dozens

of persons in Bujumbura Mairie, including in Nyakabiga and Musaga. The bodies of

persons who had been executed were also found in the commune of Mukike (Bujumbura

Province). The extrajudicial executions that took place in December 2015, on a scale that

exceeded those reported since April 2015, were accompanied or followed by torture, rape

and arbitrary arrests.

30. According to several testimonies, after the events of December 2015 the local

administrative authorities ordered bodies to be buried in common graves, particularly in

Kanyosha (Bujumbura Mairie) and Mpanda (Bubanza Province). On 29 February 2016, the

mayor of Bujumbura informed the media of the discovery of a common grave in Mutakura

(Bujumbura Mairie), asserting that the bodies were those of CNDD-FDD sympathizers who

had been killed by members of the opposition.19 Only access to all the alleged sites of

common graves, as well as forensic studies and more thorough investigations, would make

it possible to determine the validity of those allegations.

31. The Commission received reports of extrajudicial executions of members of the

security forces, particularly members of the former Burundian Armed Forces (“ex-FAB”).

For example, General Athanase Kararuza, security and defence adviser to the First Vice-

President, together with his wife, his daughter and a bodyguard, were killed in Bujumbura

by members of the police and the army on 25 April 2016.

32. According to some testimonies, people have died while in the custody of law

enforcement agencies, including in places of detention.

33. Lifeless bodies have regularly been found in several provinces, often with their arms

tied behind their back, and sometimes decapitated. In several cases, the authorities have

ordered the interment of these bodies without identifying the victims and without any

credible investigation, thereby failing in their duty to protect the right to life. In other cases,

the victims were identified as persons who opposed President Nkurunziza’s candidature for

a new term in office or as members of opposition parties. Corpses, sometimes weighed

down with stones, have been found in the Rusizi River and Lake Tanganyika. Witnesses

asserted that persons arrested by the police, military personnel or Imbonerakure had been

taken into the Rukoko forest and executed there.

34. The Commission also received reports of summary executions by Imbonerakure,

acting either as auxiliaries of the defence and security forces or on their own initiative. For

example, on 5 August 2015 in Cibitoke (Bujumbura Mairie), members of the

Imbonerakure, accompanied by police officers, executed two men after ordering them to

kneel with their hands in the air.

18 These acts do not fall within the framework of the Commission’s mandate. Since they were not

committed by organized groups, they do not constitute human rights abuses, but acts that are

punishable under Burundian criminal law.

19 This assertion was repeated in the March 2016 report of the commission established by the Attorney

General to investigate the events of 11 December 2015.

GE.17-13865 9

35. The Commission noted several cases of targeted assassination and attempted

assassination attributed to members of the National Intelligence Service or the police, such

as the assassination of Zedi Feruzi, leader of the Union pour la paix et le développement-

Zigamibanga opposition party, on 23 May 2015; the attempted assassination of Pierre

Claver Mbonimpa, President of the Association burundaise pour la protection des droits

humains et des personnes détenues, on 3 August 2015; and the execution of his son, Welly

Nzitonda, on 6 November 2015.

36. The Commission also collected information on assassinations committed by persons

whose identity and responsibility it was unable to establish, such as the assassinations of

General Adolphe Nshimirimana, the former head of the National Intelligence Service, on 2

August 2015; Colonel Jean Bikomagu, retired, on 15 August 2015; Patrice Gahungu,

spokesperson of the Union pour la paix et le développement, on 7 September 2015; Pascal

Nshimirimana, son-in-law of Pierre Claver Mbonimpa, on 9 October 2015; Lieutenant

Colonel Darius Ikurakure on 22 March 2016; Hafsa Mossi, member of the East African

Legislative Assembly, on 13 July 2016; and Emmanuel Niyonkuru, Minister of Water,

Environment, Land Management and Urban Planning, on 1 January 2017. Major General

Prime Niyongabo, Army Chief of Staff, and Willy Nyamitwe, communications adviser to

the President of the Republic, escaped assassination attempts during which other persons

were killed on 11 September 2015 and 28 November 2016 respectively.

2. Enforced disappearances

37. Arrest and detention conditions in Burundi are conducive to enforced

disappearances. The Commission received several testimonies concerning persons who

disappeared after being arrested by members of the National Intelligence Service and/or the

police. By way of example, on 9 March 2016, nine policemen, guided by an Imbonerakure

travelling in a police vehicle, arrested Hugo Haramategeko, leader of the Nouvelle alliance

pour le développement du Burundi party, in Bujumbura. His family has not heard from him

since. In some cases, members of the National Intelligence Service or the police have

demanded ransoms from the relatives of disappeared persons. Augustin Hatungimana, a

member of the Mouvement pour la réhabilitation du citoyen-Rurenzangemero party, who

was arrested by the police in Bujumbura on 9 December 2015, is still missing. His family

paid 600,000 Burundian francs to persons presenting themselves as intelligence agents and

offering to find him.

38. The context, characterized by numerous cases of disappearance and, frequently, the

existence of one or more particular elements, such as the profile of the persons targeted —

political opponents, members of civil society or “ex-FAB” — and threats made against the

victims prior to their disappearance or subsequently received by their relatives in

connection with their disappearance, affords reasonable grounds to fear enforced

disappearances. In such cases, the authorities have an obligation to open an independent

and effective investigation. For example, Savin Nahindavyi, an intelligence officer,

disappeared on 1 May 2016; one of his superiors subsequently presented his condolences to

the family but his body was never found. Several testimonies also suggest that intelligence

agents or members of the police were involved in the disappearances of Marie-Claudette

Kwizera, treasurer of the Ligue Iteka human rights organization, on 10 December 2015;

Jean Bigirimana, a journalist working for the Iwacu newspaper, on 22 July 2016; and Oscar

Ntasano, a former senator and owner of the Nonara Hotel in Bujumbura, on 21 April 2017.

39. Identification of the bodies discovered and exhumation of bodies by the authorities

might enable missing persons to be traced.

3. Right to liberty and security of person

40. The Commission found that the most frequently reported human rights violations

consisted in arbitrary arrests and detentions, which, in many cases, led to other violations

such as extrajudicial executions, enforced disappearances, acts of torture and cruel,

inhuman or degrading treatment and sexual violence.

41. The arbitrary nature of the arrests is attributable to the fact that the persons making

them, such as Imbonerakure, either were not authorized to do so or failed to respect the

10 GE.17-13865

procedures prescribed by law. Moreover, many victims were not informed of the reasons

for their arrest.

42. The Commission is also concerned about draft amendments to the Criminal Code

and the Code of Criminal Procedure which, in some cases, would enable criminal

investigation officers to conduct searches without a warrant, including at night.

43. In many cases documented by the Commission, the persons arrested were taken to

the National Intelligence Service or police cells and subjected to torture or ill-treatment

before being released or transferred to prisons. Several testimonies referred to secret places

of detention located, for example, within the headquarters of the National Intelligence

Service in Bujumbura or in private houses or containers in different provinces, where

detainees were deprived of any contact with the outside world.

44. Most of the detainees did not enjoy the safeguards prescribed by the International

Covenant on Civil and Political Rights and by Burundian law, such as access to a lawyer

and to medical care, the possibility of petitioning a court to rule on the legality of their

detention, and the right to receive visits. Many victims were also detained in conditions that

constituted cruel, inhuman or degrading treatment and for periods extending beyond the

maximum allowable time of police custody, namely seven days renewable once only,

which is already excessive.20 The practice in regard to release is often random; publicity

about an arrest, or acquaintance with a person within the State apparatus, can facilitate

release. In many cases, exorbitant amounts of money have been demanded by members of

the National Intelligence Service, the police, the judiciary or the Imbonerakure for the

release of detainees or their transfer to prisons.

4. Torture and other cruel, inhuman or degrading treatment

45. The Commission has documented a persistent practice of torture and ill-treatment

since April 2015. Numerous witnesses identified the headquarters of the National

Intelligence Service, situated near Bujumbura Cathedral, as a place where such acts

occurred, while others referred to a police detention centre known as “Chez Ndadaye”,

which was used mainly in 2015 by the Anti-Riot Brigade, among others. Several other

detention centres run by the police and the National Intelligence Service in Bujumbura and

other provinces, as well as some unofficial places of detention, were also mentioned.

46. The victims interviewed by the Commission mentioned recurrent methods of torture,

including beatings with clubs, rifle butts, bayonets, iron bars, metal chains or electric

cables, as a result of which some victims’ bones were broken and other victims lost

consciousness; long needles thrust into victims’ bodies or unidentified substances injected

into them; nails ripped out. Some victims were placed beside human remains or forced to

eat faeces. Rapes were also committed and acts of torture inflicted on the genital organs of

victims. Detainees were forced to witness executions, convinced that they would be the

next victims. Acts of torture and ill-treatment were often accompanied by insults, including

of an ethnic nature, and threats to kill the victims with firearms or grenades. In many cases

these acts caused severe and enduring physical and psychological trauma.

47. Victims described conditions of detention that may constitute cruel, inhuman or

degrading treatment, such as prison overcrowding, denial of adequate food and medical

care, denial of access to toilet facilities, and failure to separate adults from minors as was

the case at the National Intelligence Service in Bujumbura.

5. Sexual violence

48. Notwithstanding their fears of stigmatization, the Commission was able to interview

more than 45 victims of sexual violence whose ages ranged from 8 to 71 at the time when

the acts were committed. The real number of victims, mostly women but also a few men

and children, is probably much higher. The most recent of these acts of sexual violence

took place in 2017.

20 The international norm is 48 hours.

GE.17-13865 11

49. Most of the cases documented by the Commission involved rape or attempted rape

committed while police officers or members of the Imbonerakure, sometimes acting

together, were in the process of arresting the victim’s spouse or a male relative accused of

belonging to an opposition party, taking part in demonstrations or refusing to join CNDD-

FDD, although such crimes also occurred while the victims were at home alone. These acts

were frequently accompanied by offensive gender-based, political and/or ethnic remarks.

The Commission wishes to emphasize the extreme cruelty of some of these acts of

violence. For example, a female minor was raped by three Imbonerakure wearing police

uniforms beside the body of a relative whom they had killed. Two women were raped by

several men, including Imbonerakure, who subsequently mutilated their genital organs. The

Commission also heard the testimonies of women who had been raped by Imbonerakure or

police officers at roadblocks or near the borders because they were attempting to flee.

50. Sexual violence has been used as a means of torture to obtain information or

confessions from detainees. These acts include rape, forced nudity, infliction of severe

wounds on, and injection of unknown substances into, male genital organs, and the hanging

of weights on testicles. The Commission heard the testimony of a female victim of rapes,

including gang rapes, committed over a period of four days, inter alia by police officers in a

National Intelligence Service cell with a view to obtaining information.

51. Acts of sexual violence have left the victims with severe and enduring physical and

psychological trauma. Women have contracted HIV, fallen pregnant or suffered

miscarriages and several men are suffering from erectile, urinary and other problems.

6. Freedom of expression

52. The restrictions on freedom of expression noted since April 2015 have continued. In

contrast to previous years when Burundi had a dynamic civil society and numerous

independent media, the democratic space enabling journalists to express themselves freely

has been severely restricted. The Government closed four private radio stations in April and

May 2015, in some cases after they were destroyed by law enforcement units. Only one of

these radio stations, Radio Isanganiro, has been authorized to resume broadcasting since

February 2016.21 In November 2016, the National Communications Council suspended one

of the station’s programmes because it broadcast a song entitled “Human rights for

journalists”. The Union burundaise des journalistes (Burundian Union of Journalists),

which had denounced attacks on press freedom on numerous occasions, was suspended in

October 2016. Many journalists remain in exile and international arrest warrants have been

issued against some of them.

53. The Commission is concerned at instances of hate speech since April 2015. Such

language, heard both in public speeches and in informal comments by Burundian

authorities and leaders and members of CNDD-FDD, particularly Imbonerakure, is

intended to intimidate and sometimes dehumanize opponents by equating them with

animals. The use of terms such as “cockroaches” or “bugs” is disturbing, particularly as

they were used in the past to refer to Tutsis, especially in Rwanda. Such speech perpetuates

confusion between political opponents and that ethnic group.

54. A video circulated in April 2017 showed around a hundred Imbonerakure chanting a

call to “impregnate female opponents so that they can give birth to Imbonerakure”.

Following condemnation by the United Nations High Commissioner for Human Rights,22

the ruling party’s National Secretary for Information and Communication promised

sanctions against the culprits.23 A “judicial file” has apparently been opened, 24 but the

Commission has received no information concerning follow-up on that file,

21 The Rema FM radio station, which is close to the ruling party, was also destroyed in May 2015. It

resumed broadcasting in 2016.

22 See www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21505&LangID=E.

23 CNDD-FDD press release No. 0002-17-SNIC, 5 April 2017.

24 Statement by the Permanent Representative of Burundi before the Human Rights Council, 15 June

2017.

12 GE.17-13865

notwithstanding the State’s obligation to take action.25 Moreover, Imbonerakure have made

similar calls in various provinces.

7. Freedoms of association and assembly

55. Freedom of association continues to be restricted. Only two of the civil society

organizations, mostly working on human rights-related issues, which had been suspended

or whose accounts had been frozen by the Government in the latter part of 2015 have been

able to resume their activities in Burundi. On 19 October 2016, the Ministry of the Interior

announced the revocation of the licences of the Association burundaise pour la protection

des droits humains et des personnes détenues, the Forum pour le renforcement de la société

civile, the Forum pour la conscience et le développement, Action des chrétiens pour

l’abolition de la torture (ACAT Burundi) and the Réseau des citoyens probes. Five days

later, the same Ministry suspended the licences of the Coalition de la société civile pour le

monitoring électoral, the Coalition burundaise pour la Cour pénale internationale, SOS-

Torture/Burundi (even though it was established abroad) and the Ligue Iteka. The latter’s

licence was revoked on 3 January 2017 after it published a report on the deteriorating

human rights situation in Burundi. The heads of the Coalition de la société civile pour le

monitoring électoral, the Forum pour le renforcement de la société civile, the Forum pour la

conscience et le développement and ACAT Burundi have been under international arrest

warrants since 2015.

56. The Commission is concerned at the promulgation in January 2017 of a law on

Burundian non-profit organizations, and another on foreign non-governmental

organizations, certain provisions of which considerably strengthen the authorities’ control

over the activities and resources of those entities.

57. Opposition parties cannot meet freely or carry out their activities in Burundi. Their

members are under constant pressure to join the ruling party and many of them have been

arrested, tortured or killed.

8. Freedom of movement

58. A number of persons have been arrested, ill-treated and, in certain instances, raped

at roadblocks set up by police and Imbonerakure, or solely by Imbonerakure, near the

borders, particularly with Rwanda and the United Republic of Tanzania. Others have been

forced to pay large sums of money to police or Imbonerakure or have had their belongings

taken. Some persons have been threatened, arrested or tortured for helping people to flee

the country. Several members of the families of individuals who left the country have been

threatened and some have been subjected to arbitrary arrest and detention or have been

reported missing.

59. Some persons who have visited neighbouring countries, particularly Rwanda, have

been arbitrarily arrested or tortured on their return to Burundi because the authorities

allegedly accused them of collaborating with armed groups said to be based in those

countries.

60. The Burundian authorities have taken measures that hamper freedom of movement,

as exemplified by the “household record booklets” in which the head of each household is

required to list all his dependants, as well as visitors. These booklets, which are inspected

by the police during raids on homes, are allegedly intended to enable law enforcement

officials to keep track of the population. In a general context of heightened surveillance by

the authorities, this measure has the effect of discouraging professional or private travel.

9. Dysfunctions in the judiciary and other institutions

61. The Commission collected testimonies concerning undue pressure brought to bear

on judges and prosecutors by their peers and also by members of the Government or the

ruling party. Several lawyers have left the country, in some cases after receiving threats.

According to the information available to the Commission, very few criminal proceedings

25 Article 20, paragraph 2, of the International Covenant on Civil and Political Rights.

GE.17-13865 13

have been instituted against alleged perpetrators of human rights violations. The

commissions of inquiry established by the Attorney General in the wake of the events of

April 2015, the killing of nine persons in the Ngagara neighbourhood on 13 October 2015

and the events of 11 December 2015 did not act with impartiality, as demonstrated by their

reports, which the Commission examined.

62. The Commission noted long delays in judicial proceedings, the holding of some

sensitive trials on prison premises, which deterred observers from attending, and summary

trials conducted pursuant to the “expedited” procedure, applicable to those allegedly caught

in the act. By way of example, 1 police officer, 7 military personnel and 12 civilians who

had been arrested in connection with the attack on the military camp at Mukoni (Muyinga

Province) on the night of 23-24 January 2017 were tried without a lawyer on 26 January.

The Muyinga provincial court sentenced them to heavy prison terms without regard to their

claims that they had been tortured while in detention, to the point where some of the

defendants were unable to stand during the trial.

63. The judiciary’s lack of independence, which has long been observed in Burundi, has

aggravated the impunity prevailing in the country. In August 2013, the first National Forum

on the Justice System, the report of which has never been made public, emphasized the

executive branch’s influence over the National Judicial Service Commission, which is

chaired by the Head of State and composed mainly of members appointed by the

Government. The executive branch’s ascendancy over the judicial branch is also apparent

in the appointment of judges and the fact that they may be transferred, which runs counter

to the principle of the irremovability of judges. The Ministry of Justice controls the

promotion of judges and may propose their suspension or dismissal.

64. The Commission also noted the lack of independence of the national institutions for

monitoring the authorities’ actions in the field of human rights, namely the Independent

National Human Rights Commission26 and the Ombudsman, ever since the leaders and

certain members of those institutions were replaced in 2015 and 2016.

III. International crimes

A. Crimes against humanity

1. Constituent elements of crimes

65. Article 7, paragraph 1, of the Rome Statute defines crimes against humanity as acts

“committed as part of a widespread or systematic attack directed against any civilian

population, with knowledge of the attack”. Article 7, paragraph 2 (a), further stipulates that

“‘attack directed against any civilian population’ means a course of conduct involving the

multiple commission of acts […] against any civilian population, pursuant to or in

furtherance of a State or organizational policy to commit such attack”. In the light of the

information obtained, the Commission has reasonable grounds to believe that an attack

against the civilian population has been taking place in Burundi since April 2015. That

attack has consisted in the multiple commission of acts covered by the Rome Statute27

against a largely civilian population consisting in particular of opponents of the

Government or persons perceived as such.28 The fact that members of the security forces

are among the victims in no way changes that categorization.29

26 In November 2016, the Sub-Committee on Accreditation of the Global Alliance of National Human

Rights Institutions recommended that the Independent National Human Rights Commission should be

downgraded to “B” status. The final decision is to be taken in 2017.

27 See part II of the present report.

28 See part II.A of the present report.

29 In The Prosecutor v. Clément Kayishema and Obed Ruzindana, the International Criminal Tribunal

for Rwanda ruled that the presence of certain non-civilians within the targeted population did not

change the civilian character of that population.

14 GE.17-13865

66. The Rome Statute requires the existence of a State or organizational policy to

commit the attack. However, in the case law of the International Criminal Court and other

international criminal tribunals, that policy need not be of an official nature. In the Blaškić

case, the International Tribunal for the Former Yugoslavia ruled that the intent to commit

an attack need not necessarily be declared expressly or even stated clearly and precisely. It

may be surmised from the occurrence of a series of events, including “the overall political

background against which the criminal acts are set; […] the general content of a political

programme, as it appears in the writings and speeches of its authors; […] the mobilization

of armed forces; […] [and] the scale of the acts of violence perpetrated”.30 In the case of

Burundi, the violations and abuses documented by the Commission are set against the

background of a political crisis which began in April 2015, with the demonstrations against

Pierre Nkurunziza’s candidature in the presidential election, and intensified after the failed

coup d’état in May 2015 and the use of violence by armed groups and unidentified persons

against agents of the State and, in particular, against military camps on 11 December 2015.

These acts led to a mobilization of the defence and security forces in order to repress any

form of real or presumed opposition to the Government, and this continued into 2017. The

hate speech aimed at opponents by authorities and representatives of CNDD-FDD at all

levels is indicative of a general political will to suppress any dissenting opinion. Moreover,

the International Criminal Court has ruled that, in exceptional circumstances, a State’s

policy may “be implemented by a deliberate failure to take action, which is consciously

aimed at encouraging such attack”.31 The fact that, generally, the alleged perpetrators of

violations have not been prosecuted, or pressure has been brought to bear to prevent any

prosecution, can be interpreted as a deliberate failure by the Burundian State to take action

and, therefore, as encouragement on its part.

67. The Rome Statute stipulates that the attack must be “widespread or systematic”,

these two conditions not being cumulative. In the case of Burundi, the number of violations,

their commission in several provinces and the multiplicity of victims, perpetrators and

institutions involved point to the widespread nature of the attack. Its systematic nature can

be inferred either from “an organized plan in furtherance of a common policy”, which the

Commission has reasonable grounds to believe in view of its observations in the preceding

paragraph, or from “patterns of crimes” such that the latter constitute a “non-accidental

repetition of similar criminal conduct on a regular basis”,32 the existence of which the

Commission has documented.

68. Finally, the Rome Statute requires that the attack must have been carried out “with

knowledge”. In this regard, it is not necessary to prove that the perpetrator knew the details

of the attack, since such knowledge may be deduced from “indirect evidence” such as the

circumstances in which the attack occurred.33 The Commission therefore believes, in the

light of the information at its disposal, that the alleged perpetrators whom it was able to

identify, most being members of the National Intelligence Service, the police, the army and

the Imbonerakure, could not have been unaware of the background against which their acts

were set, given their functions in the State’s security apparatus or their indoctrination

within CNDD-FDD.

30 The Prosecutor v. Tihomir Blaškić, judgment of 3 March 2000.

31 International Criminal Court, Elements of crimes, p. 5, footnote 6. International Tribunal for the

Former Yugoslavia, Prosecutor v. Zoran Kupreškić et al., judgment of 14 January 2000.

32 International Criminal Court, The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui,

decision of 30 September 2008.

33 International Tribunal for the Former Yugoslavia, Prosecutor v. Duško Tadić a/k/a “Dule”, judgment

of 7 May 1997, The Prosecutor v. Tihomir Blaškić and Prosecutor v. Kunarac et al., judgment of 22

February 2001; International Criminal Tribunal for Rwanda, The Prosecutor v. Clément Kayishema

and Obed Ruzindana, judgment of 21 May 1999; and International Criminal Court, The Prosecutor v.

Germain Katanga and Mathieu Ngudjolo Chui and The Prosecutor v. Jean-Pierre Bemba Gombo,

decision of 15 June 2009. See also A/CN.4/680.

GE.17-13865 15

2. Types of crimes

69. The Commission, having established that the elements of crimes against humanity

are present, examined the types of crimes committed in Burundi since April 2015. As a

result, it has reasonable grounds to believe that the violations and infringements of the right

to life that were perpetrated by agents of the State, particularly the extrajudicial executions

and the deaths attributable to an excessive use of force by law enforcement agencies and

Imbonerakure, may constitute “murders” under the Rome Statute.34

70. The Commission also finds that the many cases of arbitrary detention in National

Intelligence Service and police cells and unofficial places of detention may constitute

“imprisonment or other severe deprivation of physical liberty in violation of fundamental

rules of international law” under the Rome Statute.35 Moreover, the violations frequently

committed during detention, including the inhuman conditions in which detainees have

been held, add to the gravity of those acts.

71. The actions of members of the security forces, sometimes assisted by Imbonerakure,

which the Commission categorized as acts of torture and cruel, inhuman or degrading

treatment constitute “torture” under the Rome Statute36 insofar as they were systematically

intended to inflict “severe physical or mental pain or suffering upon one or more persons”

while such persons were “in the custody or under the control of the perpetrator”.37

72. Cases of rape committed by police officers and/or Imbonerakure in the course of

arrests of opponents or reprisals against female members of the families of opponents

constitute “rape” under the Rome Statute.38 The other cases of sexual violence, particularly

in detention, documented by the Commission may constitute, under the Rome Statute, “any

other form of sexual violence of comparable gravity”, “torture” or “other inhumane acts of

a similar character intentionally causing great suffering, or serious injury to body or to

mental or physical health”.39

73. The various violations committed by agents of the State or Imbonerakure against

members of opposition parties — particularly members of the Forces nationales de

libération and the Mouvement pour la solidarité et la démocratie — or their relatives may

also constitute crimes of “persecution” under the Rome Statute. 40 These crimes were

politically motivated and the victims were targeted by reason of their real or presumed

affiliation with opposition parties.41 Furthermore, in certain cases of sexual violence, the

targeting of women having family ties with political opponents may constitute gender-

based persecution.

74. With regard to enforced disappearances, the Commission was able to establish, from

the viewpoint of international human rights law, some cases of disappeared persons whose

arrest or detention was confirmed by witnesses but whose disappearance was subsequently

denied by the Burundian authorities.42 However, at the current stage of its investigations,

the Commission cannot reach the same conclusion from the viewpoint of international

criminal law, under which the perpetrator of such arrest, detention or abduction must have

been aware that it would be followed by a refusal to acknowledge that deprivation of

freedom or to give information on the fate or whereabouts of the victim, or the perpetrator

of a refusal to acknowledge the detention must have known that the victim was detained.43

The Commission does not rule out the possibility that this element may be deduced from

indirect evidence, such as a background characterized by arbitrary arrests and detentions, a

climate of widespread persecution and the existence of particular facts such as threats

34 Article 7, paragraph 1 (a).

35 Article 7, paragraph 1 (e).

36 Article 7, paragraph 1 (f).

37 International Criminal Court, Elements of crimes, p. 7.

38 Article 7, paragraph 1 (g).

39 Article 7, paragraphs 1 (g), (f) and (k).

40 Article 7, paragraph 1 (h).

41 International Criminal Court, Elements of crimes, p. 10.

42 See part II.C.2 of the present report.

43 International Criminal Court, Elements of crimes, p.11.

16 GE.17-13865

preceding or following the disappearances. In the many cases in which, from the human

rights viewpoint, the Commission only has reasonable grounds to fear that enforced

disappearances have occurred, further evidence will need to be gathered within the

framework of a more thorough investigation before these acts can be categorized as

enforced disappearances under international criminal law.

B. Genocide

75. Although, within the context of certain violations such as arrests, torture and sexual

violence, the Commission was able to show that Tutsis were targeted by insults of an ethnic

nature, it is not in a position to establish the existence of a political will to destroy that

ethnic group “in whole or in part”, as required by the definition of genocide given in article

6 of the Rome Statute.

76. The Commission nevertheless remains concerned about certain speeches by State

authorities and officials of the ruling party. Although such statements do not constitute

direct and public incitement to commit genocide,44 they help to create a dangerous climate

of hate and to terrorize the population, and could rekindle ethnic tensions.

C. Individual responsibility

77. The Commission has reasonable grounds to believe that the above-mentioned crimes

against humanity are attributable primarily to State officials at the highest level and to

senior officers and members of the National Intelligence Service, the police, the army and

the Imbonerakure.

78. The Commission has drawn up a non-exhaustive list of alleged perpetrators of

crimes against humanity, accompanied by information concerning specific acts that they are

suspected to have committed or ordered. It has made a distinction between direct

responsibility and the responsibility of military commanders and superiors, as provided for

in the Rome Statute.45

79. Given the need to respect the presumption of innocence and to protect victims and

witnesses, the Commission has decided not to publish that list, which will be placed in the

safekeeping of the United Nations High Commissioner for Human Rights. The latter may

share it with any competent body and/or court conducting credible investigations or seeking

to gather information on individuals or institutions pursuant to a United Nations mandate.

D. Accountability mechanisms

80. In view of the lack of independence of the Burundian judiciary and the impunity

enjoyed in respect of the gross violations committed by agents of the State and members of

the ruling party, including the Imbonerakure, the Commission believes that the Burundian

State is neither willing nor able genuinely to investigate or prosecute those violations.46 It

therefore falls to the International Criminal Court to investigate those violations and

establish criminal responsibility in respect thereof.

44 Article III of the Convention on the Prevention and Punishment of the Crime of Genocide and article

25, paragraph 3 (e), of the Rome Statute.

45 Article 28 of the Rome Statute.

46 Article 17, paragraph 1 (a), of the Rome Statute.

GE.17-13865 17

IV. Conclusions and recommendations

A. Main conclusions

81. In the light of its investigations, the Commission finds that extrajudicial

executions, arbitrary arrests and detentions, enforced disappearances, acts of torture

and cruel, inhuman or degrading treatment and sexual violence have persisted in

Burundi from April 2015 to the time when the present report was drafted.

82. The Commission has reasonable grounds to believe that several of these

violations, committed mostly by members of the National Intelligence Service, the

police, the army and the Imbonerakure, constitute crimes against humanity.

83. The Commission notes that the democratic space has been considerably

reduced since 2015 and a climate of deep fear is affecting Burundians even in the

countries to which they have fled. In the Commission’s view, the risk that the refugees

might be subjected to gross violations of human rights if they are sent back to

Burundi necessitates strict respect for the principle of non-refoulement47 on the part

of the host countries.

B. Recommendations

84. On the basis of the above conclusions, the Commission recommends as follows:

1. The Burundian authorities should:

85. Put an immediate end to the gross human rights violations being committed by

agents of the State and Imbonerakure over which the State exercises control;

86. Investigate these violations, ensure that their alleged perpetrators are

prosecuted promptly in accordance with credible, independent and fair procedures

and that the victims obtain just reparation and, where the alleged perpetrators are

agents of the State, suspend them from their duties pending the completion of the

investigation and the judicial proceedings;

87. Take practical measures to bring about a rapid improvement in the human

rights situation, in particular by:

• Withdrawing the warrants for the arrest of heads of media outlets, civil society

organizations and political parties who have neither used nor advocated

violence, and permitting their safe return to Burundi;

• Lifting the suspension and reversing the revocation of the licences of media and

civil society organizations, permitting them to resume their activities with

complete independence and reviewing the laws adopted in 2017 concerning

non-profit organizations and foreign non-governmental organizations;

• Immediately releasing all political prisoners;

• Ensuring that criminal investigation officers (officiers de police judiciaire) are

not authorized to conduct searches without a warrant, including at night, as

envisaged in the draft amendments to the Criminal Code and the Code of

Criminal Procedure;

• Ensuring that individuals lacking legal authorization, particularly

Imbonerakure, do not perform or participate in law enforcement activities,

including in places of detention, and do not wear military or police uniforms or

possess weapons;

• Prosecuting individuals who incite hatred or violence;

47 Article 33, paragraph 1, of the Convention relating to the Status of Refugees.

18 GE.17-13865

• Putting an end to threats, intimidation and acts of extortion by agents of the

State and Imbonerakure;

• Giving victims of sexual violence and torture access to medical and

psychosocial services;

88. Undertake a thorough reform of the judiciary;

89. Ensure that members of the defence and security forces respect human rights

in all circumstances and serve the interests of the population as a whole, not solely

those of the ruling party;

90. Reconsider their decision to withdraw from the Rome Statute, cooperate fully

with the International Criminal Court in the ongoing preliminary examination and, if

an investigation is initiated, continue that cooperation, inter alia by ensuring the

protection of victims and witnesses;

91. Authorize the Office of the United Nations High Commissioner for Human

Rights to resume its documentation of human rights violations in Burundi, which has

been suspended since October 2016;

92. Sign and implement the memorandum of understanding with the African

Union and permit the full deployment of 100 human rights observers and 100 military

experts that was decided upon in 2016;

93. Cooperate with United Nations human rights mechanisms by once again

receiving special procedures missions and implementing the recent recommendations

of treaty bodies;

94. Actively seek a lasting solution to the political crisis, inter alia through

international initiatives to promote dialogue.

2. Political parties and armed opposition groups should:

95. Put an immediate end to human rights abuses and acts of violence committed

by their members;

96. Refrain from any incitement of violence and participate in the quest for a

lasting solution to the political crisis in Burundi.

3. The Human Rights Council should:

97. Extend the Commission’s mandate for a period of one year to enable it to

conduct further and more thorough investigations in view of the persistence of gross

human rights violations and abuses and the absence of other specific mechanisms

capable of undertaking independent and thorough investigations into the human

rights situation in Burundi;

98. Request the Office of the United Nations High Commissioner for Human

Rights to report, at the forthcoming sessions of the Council, on the development of its

cooperation with the Burundian Government.

4. The International Criminal Court should:

99. Initiate, as soon as possible, an investigation into the crimes committed in

Burundi in the light of the conclusions contained in the present report and other

information at its disposal.

5. The United Nations Security Council should:

100. Take due account of the Commission’s conclusions, as well as the persistence of

gross violations of human rights, in any discussion on Burundi and, in this context,

ensure the effective implementation of resolution 2303 (2016);

101. Refer to the International Criminal Court any international crime that might

be committed in Burundi after 27 October 2017;

GE.17-13865 19

102. Impose individual sanctions on the principal alleged perpetrators of gross

human rights violations and international crimes in Burundi.

6. The Secretary-General of the United Nations should:

103. Ensure that respect for human rights and restoration of the rule of law are

among the priorities of his Special Envoy for Burundi;

104. Ensure that no alleged perpetrator of human rights violations or international

crimes in Burundi is recruited for United Nations peacekeeping missions.

7. The States Members of the United Nations should:

105. Grant prima facie refugee status to Burundian asylum seekers and ensure strict

respect for the principle of non-refoulement and refugee protection;

106. Prosecute, in accordance with the principle of universal jurisdiction, alleged

perpetrators of international crimes committed in Burundi who are found to be in

their territory;

107. Maintain, in the absence of any improvement in the human rights situation in

Burundi, the individual sanctions and the suspension of direct aid to the Government;

108. Provide technical assistance, inter alia in respect of autopsies, exhumations and

identification of bodies, to enable the Burundian authorities to conduct credible and

independent investigations;

109. Support the establishment of specialized medical and psychosocial services,

especially for victims of torture and sexual violence;

110. Support the Burundian authorities in any judicial and security sector reform

endeavours that they might wish to undertake in order to improve the human rights

situation.

8. The African Union should:

111. Retake the lead in seeking a lasting solution to the crisis in Burundi based on

respect for human rights and rejection of impunity, as provided for in its Constitutive

Act, and play an active role in that process;

112. Ensure that no agent of the Burundian State who is accused of human rights

violations or international crimes is recruited for African Union peacekeeping

missions;

113. Ensure that the full complement of African Union human rights observers and

military experts is deployed rapidly in Burundi;

114. Consider, in the event that the current situation in Burundi persists, the

application of article 4 (h) of the Constitutive Act of the African Union, under which it

is authorized to intervene in a member State in certain circumstances, particularly in

the event of crimes against humanity.

9. The East African Community should:

115. Ensure that a rapid improvement of the human rights situation is a priority in

its mediation efforts.

10. The guarantors of the Arusha Agreement of 2000, in their capacity as committed

proponents of a lasting peace in Burundi, should:

116. Meet with a view to finding a lasting solution to the political and human rights

crisis in Burundi.

20 GE.17-13865

Annexes

I. Map of Burundi

GE.17-13865 21

II. Correspondence with the Government of Burundi

1. Note verbale sent to the Permanent Mission of Burundi on 20 December 2016

22 GE.17-13865

2. Note verbale sent to the Permanent Mission of Burundi on 24 January 2017

GE.17-13865 23

3. Note verbale dated 26 January 2017 from the Permanent Mission of Burundi

24 GE.17-13865

4. Note verbale sent to the Permanent Mission of Burundi on 6 February 2017, together

with a letter addressed to the Burundian Minister for Foreign Affairs and

International Cooperation

GE.17-13865 25

26 GE.17-13865

GE.17-13865 27

5. Note verbale sent to the Permanent Mission of Burundi on 13 March 2017

28 GE.17-13865

6. Note verbale sent to the Permanent Mission of Burundi on 20 March 2017, together

with a letter addressed to the Burundian Minister for Foreign Affairs and

International Cooperation

GE.17-13865 29

30 GE.17-13865