A/HRC/36/54 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 genderbased 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 35 36 37 38 39 40 41 42 43 GE.17-13865 Article 7, paragraph 1 (a). Article 7, paragraph 1 (e). Article 7, paragraph 1 (f). International Criminal Court, Elements of crimes, p. 7. Article 7, paragraph 1 (g). Article 7, paragraphs 1 (g), (f) and (k). Article 7, paragraph 1 (h). International Criminal Court, Elements of crimes, p. 10. See part II.C.2 of the present report. International Criminal Court, Elements of crimes, p.11. 15