SS (Adan, sexual violence, UNHCR letter) Burundi CG [2004] UKIAT 00290 (29 October 2004) [2004] UKIAT 00290

UKIAT
SS (Adan, sexual violence, UNHCR letter) Burundi CG [2004] UKIAT 00290 (29 October 2004)
[2004] UKIAT 00290 · 2004-10-29
For the Appellant: Ms. M. C. Benitez, of Counsel, instructed by Stanley & Co. Solicitors. For the Respondent: Mr. P. Deller, Senior Home Office Presenting Officer.

DETERMINATION AND REASONS

(a) ( Ground 1 ) that the Adjudicator had erroneously required the Appellant to show that she was at risk of ill-treatment over and above the risk in a civil war situation. It is asserted in the grounds of application that the test in Secretary of State for the Home Department v. Adan [1999] 1AC 293 is only applicable during a civil war and that, once the civil war is over, a claimant no longer needs to show that s/he is at risk over and above that emanating from the civil war.(b) ( Ground 2 ) In the event that the test in the Adan case applies, that the Adjudicator erred in his application of it. It is asserted that the Adjudicator's finding (at paragraphs 53 and 55) that the Appellant is not at specific risk is perverse in that the Appellant did show a "differential impact" as compared to civilians exposed to the ordinary incidents of civil war. It is asserted that, given the particular circumstances in Burundi, membership of the Hutu ethnic group is in itself sufficient ground to fear persecution.(c) ( Ground 3 ) Having accepted the Appellant's account of past persecution on grounds of ethnicity, the Adjudicator erred in concluding that she was not at real risk of future persecution. It is asserted that the Adjudicator had failed to take into account the past persecution and that past persecution is relevant to the "differential impact" test. Relying on the Court of Appeal's judgement in Demirkaya v. The Secretary of State for the Home Department [1999] Imm AR 498 , it is asserted that past maltreatment is an excellent indicator of the future and that the background evidence discloses no major change of circumstances in Burundi. (a) In 1993, some of her family members, including her husband, were killed or went missing in action. In November 1993, she was attacked and kicked whilst pregnant. In March 1994, she and her family were attacked by Tutsi militiamen. Her sister and her father were captured but she and her mother managed to escape. (b) The Appellant and her mother then went to the DRC (Democratic Republic of the Congo, formerly Zaire), where they stayed in a camp in Uvira. Whilst there, the Appellant was attacked and gang-raped by three military men who were employed to look after camp security. (c) In April 1994, the Appellant and her mother returned to Burundi. They were detained because they did not have any identification documentation. They were kept in a jail, where they were beaten. They were able to escape from the jail when Hutu rebels attacked the jail. The Appellant and her mother were again attacked by Tutsi militia and her mother shot and injured. They decided to cross the border into Tanzania.(d) In Tanzania, villagers told the Appellant and her mother about a refugee camp, where they arrived in December 1994. In September or October 1997, the camp was attacked by rebels. The Appellant received injuries, sustained by an axe. Her mother was stabbed and killed. The Appellant remained in the camp. On 19 March 2004, she was raped again. She fled the camp with the help of a Catholic missionary. She stayed in the missionary house until April 2003, when a person by the name of Father John helped her to escape Tanzania with the services of an agent.53. I consider, in fact, that any risk to the Appellant would be stemming from the effects of the ongoing civil war in Burundi. I do not feel there is any particular risk of persecution for reasons of race which is faced specifically by the Appellant who is a member of the ethnic majority in Burundi. On this basis I find myself unable to allow her asylum appeal.54. As to matters relating to Article 3, I remind myself that ill-treatment must attain a minimum level of severity in order to fall within Article 3 ( Ireland v. UK ). The mere fact that there will be a return to hardship resulting from the ravages of Civil War cannot produce a breach of human rights ( SK [2002] UKIAT 05613 ). I remind myself that the standards of the ECHR cannot be imposed on all states. Regard must be had to circumstances in individual states and to standards accepted and expected in those states ( Fazilat [2002] UKIAT 00973 ).55. Adopting this approach I consider that there is nothing specific in relation to the Appellant's individual circumstances which would suggest she would face any risk of persecution or treatment contrary to Article 3 over and above what is felt by the normal population in Burundi.(our emphasis to paragraph 53).Documents:(Served on behalf of the Appellant):(a) U.S. State Department (USSD) Report on Burundi for the year 2003, dated 25 February 2004 ( Annex B of the Appellant's bundle );(b) Human Rights Watch (HRW), "Overview of human rights developments 2003: Burundi", dated 1 January 2004 ( Annex C of the Appellant's bundle );(c) US Committee for Refugees, "World Refugee Survey 2004: Burundi", dated 25 May 2004 ( Annex D of the Appellant's bundle );(d) Amnesty International, "Amnesty International Report 2004: Burundi", dated 26 May 2004 ( Annex E of the Appellant's bundle );(e) Amnesty International, extract from the "Amnesty International Report 2003: Burundi", dated 28 May 2005 ( pages I.1 to I.4 of the Appellant's bundle );(f) USSD Report on Burundi for the year 2002, dated 31 March 2003 ( pages I.4 to I.21 of the Appellant's bundle );(g) Letter dated 13 February 2004 from UNHCR's office in London addressed to Ms. Benitez, entitled:
"Return of Hutus to Burundi", issued under the UNHCR's code: PRL23.1/BURUNDI/CM/0030; (h) Amnesty International Report, "
Burundi: Rape – the hidden human rights abuse". This report is dated 24 February 2004, according to Item 5(n) of Annex D on page 70 of the CIPU report dated April 2003. It is based, in part, on research conducted by Amnesty International during a visit to Burundi in September 2003 (see the fifth paragraph of the report). (i) An article downloaded from the website of IRIN (United Nations Integrated Regional Information Network), entitled:
"Our bodies - their battle ground: Gender-based violence in conflict zones"
. It is not clear when this document was issued by IRIN.(Served on behalf of the Respondent):(j) CIPU report on Burundi dated April 2004.Submissions:

DETERMINATION

(a) (paragraphs18.1 and18.2 ) we briefly summarise the main events in Burundi's history since independence from Belgium on 1 July 1962.(b) (paragraphs 19.1 to 19.4) we briefly describe the various associations, groupings, parties and rebel movements which one encounters on any perusal of the objective evidence;(c) (paragraphs20.1 and20.2 ) we briefly describe the main features of the transitional period in Burundi;(d) (paragraphs 21.1 to 21.4) we describe the current state of the peace process;(e) (paragraphs 22.1 to 22.8) we assess the evidence as to the incidence of sexual violence and rape in Burundi, over the year 2003; and(f) (paragraphs 23.1 to 23.4) we assess the UNHCR's letter dated 13 February 2004 in the light of the objective evidence.Snapshot of Burundi's history since independence:The various associations, movements etc.(a) FRODEBU (Front pour la démocratie au Burundi). This is a Hutu-dominated grouping of organisations.(b) UPRONA (Union pour le progrés national). This is a Tutsi-dominated grouping of parties. (a) G10 (formerly known as G8) - a grouping of 10 Tutsi-dominated parties; (b) G7 – a grouping of 7 Hutu-dominated organisations.Both G10 and G7 have participated in the peace process.The CNDD (Conseil national pour la defense de la démocratie) was originally the military-wing of FRODEBU, led by Leonard Nyangoma. In early 1998, a faction led by Jean-Bosco Ndayikengurukiye broke away from the CNDD and became an armed rebel group. Ndayikengurukiye's faction itself subsequently split into two (see below). What is now left of the original group formed by Leonard Nyagoma is not a rebel armed group, and should not be confused with the rebel groups. The (original) CNDD is Hutu-dominated and was one of the G7 group of parties during the peace process.(a) the CNDD-FDD (Ndayikengurukiye) , the rebel armed group led by Ndayikengurukiye, estimated in 2003 to have about 3,000 combatants.(b) the CNDD-FDD (Nkurunziza) , the rebel armed group, led by Nkurunziza. This is by far the largest armed group in Burundi, estimated in 2003 to have about 25,000 combatants.The Palipehutu-FNL (commonly referred to simply as the FNL) is a rebel armed group. In 2001, Agathon Rwasa replaced Kossan Kabura as leader. In August 2002, the Palipehutu-FNL split into the following two factions:(c) the FNL (Rwasa) , under the leadership of Agathon Rwasa. It is the larger and the more powerful of the two FNL rebel armed factions, estimated in 2003 to have about 3,000 combatants. (d) FNL (Mugabarabona) , led by Alain Mugabarabona.There is one more armed rebel movement, called the "Front for Democracy and the Nation in Burundi-FRODEBU-Mparaniragihugu". It is referred to at the end of Annex B of the CIPU report and does not appear to have much, if any, impact on the peace process, or its prospects.The transitional period:(a) In the first phase of 18 months, President Buyoya (a Tutsi) and Vice President Domitien Ndayizeye (a Hutu, the then secretary general of the main opposition pro-Hutu FRODEBU party) were sworn in ( paragraphs 4.17 to 4.21 and 4.25 of the CIPU report and section 3 of the USSD Report for 2003 ).(b) In the second phase of 18 months (which commenced on 30 April 2003), Domitien Ndayizeye succeeded Buyoya as President, and the Burundian Parliament confirmed Alphonse Kadege of the Tutsi-based UPRONA political party as the second Vice President ( first [paragraph of the USSD report for 2003 and paragraph 4.41 and 4.42 of the CIPU report ).

The current state of the peace process

(a) The CNDD-FDD (Nkurunziza) faction – that is, the largest of the two CNDD-FDD factions - signed a cease-fire agreement on 3 December 2002 (which was due to take effect on 30 December 2002 but which was in fact delayed – see below) and a power-sharing agreement (the Pretoria Protocol) on 8 October 2003. In November 2003, it entered the Transitional Government, assuming four cabinet posts and other posts ( the first paragraph of the USSD Report for 2003, paragraph 4.45 and Annex B (page 64) of the CIPU report ). The agreement also provides for the CNDD-FDD (Nkurunziza) to have an agreed share of Burundi's armed forces, police force etc. There is provision for combatants of the CNDD-FDD (Nkurunziza) to move to sites designated by the Joint Cease-fire Commission (a process known as 'cantonment'), while elements of the Burundi Armed Forces would be confined to agreed zones ( paragraph 4.45 of the CIPU report ). Most combatants are expected to be integrated into the Burundian Armed Forces; those unsuitable will be demobilised ( Annex B of the CIPU report ).The cease-fire agreements had also called for the deployment of an international peace force and the establishment of a Joint Cease-fire Commission to assist the parties in implementing the agreements. By February 2004, there were 2,523 troops of the peace-keeping force (known as the Africa Mission in Burundi (AMIB)) in place in Burundi as well as 43 international military observers ( paragraph 4.47 of the CIPU report ). Cantonment and demobilisation of former rebel fighters began at the end of June 2003 ( paragraph 4.48 of the CIPU Report ).Clearly, there are problems with the cantonment process – for example, who falls within the definition of a "fighter" (and therefore who can benefit from the cantonment process) and the hygiene conditions in the camps ( see paragraphs 4.49 and 4.50 of the CIPU report ). The cantonment process has been referred to as being currently "stalled" ( see paragraphs 4.51 and 4.58 of the CIPU report ). Nevertheless, it is clear that the CNDD-FDD (Nkurunziza) is very much part of the peace process now. (b) The CNDD-FDD (Ndayikengurukiye) faction signed a cease-fire agreement with the Transitional Government in October 2002 and now has one member in the Cabinet of Ministers announced on 23 November 2003 ( see Annex B of the CIPU report, page 64 ). (c) The FNL (Mugabarabona) faction entered into peace negotiations with the Transitional Government in August 2002 and signed a cease-fire agreement in October 2002 ( Annex B of the CIPU Report on page 64 ). It has taken part in the cantonment process (58 fighters were cantoned in June 2003: paragraph 4.48 of the CIPU report ). On 20 December 2003, it announced that it had transformed itself into a political party known as Front national de liberation Icanzo (FNL Icanzo) and would apply to the Interior Ministry for registration ( Annex B on page 65 and paragraph 4.54 of the CIPU Report ).(a) Although the cease-fire agreed between the CNDD-FDD (Nkurunziza) and the Transitional Government (due to take effect on 30 December 2002) was delayed, hostilities between the CNDD-FDD (Nkurunziza) and government forces ceased following the signing of the Pretoria Agreement on 8 October 2003 ( paragraph 6.1 of the CIPU Report, attributed to an IRIN report of 7 January 2004 );(b) There is no indication in the objective evidence before us of any fighting by the other CNDD-FDD faction (the Ndayikengurukiye) against government forces or by the FNL (Mugabarabona) against government forces, at least not after 8 October 2003. Accordingly, the evidence is that hostilities between the CNDD-FDD faction (the Ndayikengurukiye) and government forces and between the FNL (Mugabarabona) and government forces have ceased, at least from 8 October 2003 onwards.(c) Up until 8 October 2003, the CNDD-FDD (Nkurunziza) was not only engaged n fighting against government forces, the conflict between them escalated ( see the Amnesty International Report dated 26 January 2004, second sentence of the penultimate paragraph on page E1 of the Appellant's bundle ).(d) In the run-up to the signing of the Pretoria Protocol in October 2003, the FNL (Rwasa) faction attempted to derail the negotiations between the CNDD-FDD (Nkurunziza) rebels and the government by increasing its attacks in early September 2003 – see, for example, the fifth paragraph on the second page of the US Committee for Refugee, "World Refugee Survey 2004: Burundi" (page D2 of the Appellant's bundle), which states:Attempting to derail renewed negotiations between FDD rebels and the government, FNL rebels increased attacks in early September [2003].(e) Following the cessation of hostilities between the CNDD-FDD (Nkurunziza) and government forces, any fighting by the CNDD-FDD (Nkurunziza) forces has been directed against the FNL (Rwasa) faction with (it seems) the active co-operation or tacit acceptance of government forces. See, for example:the USSD Report for 2003 ( page B1 of the Appellant's bundle ), which states:the country remained engaged in a low-intensity civil conflict and for most of the year, the conflict involved two armed oppositions groups, the [CNDD-FDD (Nkurunziza)] faction and the [Palipehutu-FNL (Rwasa) faction]. The FNL [Rwasa faction] ........... launched attacks on Bujumbura and its environs throughout the year. Although the security situation in most parts of the country improved, in Bujumbura Rural Province, which surrounds the capital, fighting continued throughout the year.............. fighting reached the capital city of Bujumbura in April, July and November 2003.Following the signing of the November power-sharing protocol, the Transitional Government allowed the CNDD-FDD to conduct military operations against the FNL [Rwasa faction]. In December, outside of Bujumbura, the Transitional Government reportedly allowed CNDD-FDD [Nkurunziza] forces to operate an armed police force parallel to that of the Transitional Government.

(our emphasis)

- the first and the third paragraphs of the HRW Report dated 1 January 2004 ( page C1 of the Appellant's bundle ), which state:"By the end of 2003, government forces, aided by their new FDD allies, continued the war against the FNL, particularly in and around Bujumbura, the national capital";

and

"The arrangements between government soldiers and former FDD combatants fighting the FNL at the end of 2003 were often informal, making it difficult to attribute responsibility for the conduct of their forces."
"civil war ended in most of Burundi in late 2003 as the government concluded several agreements with the major rebel group, ......... the FDD".(Clearly, the reference to the FDD can only be to the CNDD-FDD (Nkurunziza) faction).

Rape and sexual violence in Burundi

Level of sexual violence and rape over 2003:(a) Amnesty International (in its report of 24 February 2004) and the UN Special Rapporteur (in a report published on 20 October 2003) noted a significant increase in the incidence of rape in 2003, the victims being women, girls and boys. The perpetrators include soldiers of the regular army, members of armed rebel groups, armed criminal gangs and private individuals (paragraph 6.6 of the CIPU Report) . In her report of 20 October 2003, the United Nations Special Rapporteur states:Mass rapes, often gang rapes, perpetrated by members of the armed groups and soldiers of the regular army, and also by unknown persons or deserters from both types of forces, have recently increased considerably. ( paragraph 6.24 of the CIPU report )(b) The USSD report for 2003 states:In November and December [2003], in Bujumbura Rural Province, there were reports of a significant increase in the killing and rape of civilians and the destruction of homes by FAB [Burundi Armed Forces] soldiers following their relocation to the province ( section 1.g ).During the year, soldiers and rebels systematically raped women and girls, and the number of rapes increased compared with that of the previous year, according to U.N. and NGO information. .............................. ( section 1.g )Whether sexual violence and rape occurs in the "context of the conflict": (c) The USSD report for 2003 states:The NGO attributed the increase in rape to the conflict. ............ ( section 1.g )(d) Amnesty International (in its report of 24 February 2004, page 1) stated:Like all human rights abuses in Burundi, rape has become an entrenched feature of the crisis because the perpetrators - whether government soldiers, members of armed political groups, or private individuals - have largely not been brought to justice. .................... Rape has, however, also been exacerbated by widespread discrimination against women ...................... (page 1)In 2003 , national and international non-governmental human rights and humanitarian organizations, international agencies, and government authorities reported an alarming increase in the number of cases of rape in the context of Burundi's armed conflict . .......................... Accurate statistical comparisons are in fact impossible as it is only recently that information on rape began to be recorded, despite its endemic nature. ................ (page 1)(e) On the other hand, the IRIN article states that the perpetrators are "sometimes" combatants and that, "in many cases", they were not combatants but civilians, including family members. This suggests that most sexual violence is not conflict-related.Whether sexual violence and rape are used as weapons of war:(f) Amnesty International (in its report of 24 February 2004) states:The perpetrators are largely members of the Burundian armed forces and armed political groups, as well as armed criminal gangs who not only rob but also rape… Even from the limited evidence available, the scale of rape indicates a deliberate strategy in some parts of the country by belligerents to use rape and other forms of sexual violence against women as a weapon of war to instil terror among the civilian population and to degrade and humiliate it. (page 1)(g) However, it should be noted that Amnesty International also stated in the same report:While many cases of rape and sexual violence appear to be indiscriminate and due to lack of discipline and accountability among troops, in some instances it appears that rape is used more systematically to ill-treat, humiliate and degrade the population as well as to promote the dominance of the perpetrating group, be it government or opposition. Both national and international organizations in particular expressed concern that during 2003 and government armed forces and the CNDD-FDD (Nkurunziza) committed scores of rapes in Ruyigi province, as well as human rights abuses and looting, in a pattern of reprisal and counter-reprisal. (page 5)(h) The USSD Report for 2003 (first paragraph of section 1.g) refers to reprisals by the FAB (Burundian Armed Forces) against civilians, in reprisal for rebel attacks, and for suspected collaboration with revels. Such reprisals included rape.Whether race is a factor:(i) The USSD report for 2003 states (section 1.g):Rebels killed, beat, kidnapped, and stole from civilians, and raped women (see Section 1.b.). On occasion, Hutu rebels deliberately targeted Tutsi citizens.(j) In its report of 24 February 2004, Amnesty International stated:Scores of rape of Tutsi women were for example, committed by the CNDD-FDD (Nkurunziza) in Ruhwago, Ruyigo province in February and March 2003, in reprisal for rape or other abuses committed by government forces in Hutu areas of the province. (page 5)Rape outwith the context of the conflict:(k) Amnesty International suggests that rape, more generally, is on the increase in Burundi – see page 1 of its report of 24 February 2004.Evidence which attributes the increase in rape to non-conflict related reasons (domestic rape):(l) The USSD report for 2003 states (section 1.g):According to AI, domestic rape (outside the context of the conflict) was common , including rape of young girls, committed with the belief that it would prevent or cure HIV/AIDS. According to an NGO, this belief may explain why the majority of rapes committed during the year involved victims younger than 18 years old , and in one case, involved a 2-year-old girl. However, information on rape has only recently begun to be recorded. Few cases of rape were reported to the authorities,....................................Whether the increase in rape is due to non-conflict related reasons (criminality):(m) Amnesty International (in its report of 26 May 2004, first paragraph, see page E1 of the Appellant's bundle) states that armed robbery by criminal gangs also increased dramatically over 2003 and that this was often accompanied by rape. (n) Amnesty International in its report of 13 January 2004 also referred to the increase in violent crime, stating:The proliferation of small arms contributed to dramatic rise in violent armed crime in 2003. Armed criminal gangs multiplied. ( paragraph 6.122 of the CIPU report )(o) The UN Secretary General, in his report of 16 March 2004, stated:While hostilities have generally eased, criminality appears to have increased , aided by the thousands of weapons of [sic] in circulation. Attacks, ambushes and harassment of individuals and groups along the main road are commonplace .............. Refugees and internally displaced persons have also reported cases of rape and general insecurity ................... ( see paragraphs 6.120 and 6.121 of the CIPU report).Since the 2003 report of the Special Rapporteur on human rights in Burundi, there has been little improvement in the human rights situation in the country............. The civilian population, especially the elderly, women and children, are the primary targets of the acts of violence, which are committed with impunity. ( paragraph 6.2 of the CIPU report ).(a) In December 2003, the UN Secretary-General reported in December 2003 that FNL (Rwasa) has been "considerably weakened and isolated" since its attacks on Bujumbura in July 2003 and that, consequently, its ability to hinder the peace process was considered to be limited ( paragraph 4.53 of the CIPU Report ).(b) In its report of 13 January 2004, Amnesty International stated: "Though numerically quite small, [FNL (Rwasa)] has shown it is capable of maintaining low-level action as well as launching its operations relatively easily ( paragraph 4.53 of the CIPU report ).(c) By March 2004, fighting by FNL (Rwasa) was mainly concentrated in the Bujumbura area ( see the final sentence of paragraph 6.1 of the CIPU report ).(d) The UN Secretary-General, in his report of 16 March 2004, stated:While the cease-fire is generally holding and major military operations have ceased throughout most of the country ........... joint operations conducted by [the government armed forces] and the CNDD-FDD (Nkurunziza) continue.( the final sentence of paragraph 5.35 of the CIPU report );............... the security situation has dramatically improved and calm has returned to most provinces . This is a major change from the volatile situation experienced until recently, when daily attacks were still the norm. Nevertheless ........... continued hostilities between the joint [government armed forced]/CNDD-FDD (Nkurunziza) forces and the FNL (Rwasa) in Bujumbura continue to seriously affect security in those areas................ While hostilities have generally eased,................... ( paragraph 6.2 of the CIPU Report ).(e) On 21 April 2003, FNL (Rwasa) announced that it had decided to suspend hostilities against the Transitional Government. Its spokesman said:
"We have decided to stop fighting immediately but if attacked we will defend ourselves"
. The Government communication minister reacted by saying that there would be no military offensive by government forces if the FNL stopped attacks. However, the next day (22 April) there was a clash between government and the FNL (Rwasa) forces in Bujumbura Rural, each side blaming the other for an unprovoked attack. It was speculated that the clash may have resulted from news of the truce not yet being communicated down the lines on one or both sides ( paragraph 4.53 of the CIPU report ).

The UNHCR's letter

(a) You will note from UNHCR's position on Burundi which is set out below, that we do, ....., have protection concerns about returning asylum seekers to Burundi.(b) Our last formal comment on the situation in this country was issued in April 2002 and we are yet to receive a current update. In April 2002, UNHCR noted that the ratification by the Burundian National Assembly of the Arusha Peace Accord in August 2000 and the inauguration of a transitional government in November 2001 were important steps towards the achievement of peace and reconciliation in Burundi. Notwithstanding these important developments, the absence of a cease-fire agreement between that the army and the various rebel factions meant that the security situation remained volatile and dangerous, resulting in the continued flow of refugees from Burundi.(c) UNHCR's view was that Burundians of both ethnic groups continued to be susceptible and vulnerable to persecution or violence perpetrated by both State and non-state actors. Whilst politically active individuals were in this respect most at risk, other prominent members of society and those related to them were also at risk. Given that the civil war in Burundi was based on political and ethnic differences between the warring parties, ordinary civilians repeatedly fell victim to ethnically motivated violence. In light of all the above, UNHCR counselled States to exercise caution before making any decision to remove an individual to Burundi.(d) Pending a formal UNHCR Headquarters update on Burundi, we are advising that legal representatives and decision-makers should continue to be guided by the April 2002 position. This is because it remains valid in its material particulars, especially as regards the risks of persecution for reasons of ethnicity or political opinion, real or imputed; the fact that the continuing conflict is left open by the absence of a cease-fire agreement; and the fact that widespread violence and abuse warrants caution in decisions to return unsuccessful asylum seekers.(e) The continuing validity of our April 2002 position is further affirmed by credible publicly available information about current developments in Burundi. Useful sources include Human Rights Watch, Amnesty International, the European Country of Origin Network, The World Health Organisation and the BBC Online news service.(f) These and other sources confirm that intense armed conflict continues to rage between government and rebel forces. The Forces for the Defence of Democracy, the largest Hutu rebel group led by Pierre Nkurunziza, signed a cease-fire with the government in December 2002 under which the old army was to be dismantled and a new one created. This crucial transition is, however, yet to be carried out. The cease-fire fell through and the Forces for the Defence for Democracy has led attacks in major cities this year. In July this year, 300 rebels and 15 government troops were killed, and thousands fled, during a major assault on the capital Bujumbura by the smallest but oldest Hutu rebel group, the PALIPEHUTU-FNL, also known as the National Liberation Front. This group refuses to hold talks with the government without the presence of Mr Mandela as negotiator.(g) The precarious security and protection situation continues despite the appointment of a Hutu president, President Domitien Ndayizeye, who succeeded Pierre Buyoya, the Tutsi who headed the transitional government mentioned above. President Ndayizeye worked under President Buyoya as vice president for 18 months. The rebel groups see the new President as window dressing as the army continues to be dominated by Tutsis. They demand a sharp reduction in the Tutsi presence in the army, and the dismantling of 'regroupment camps' which currently have a capacity to hold more than 800,000 Hutus.(h) The political instability in Burundi is worsened by the extreme humanitarian crisis facing the country. Approximately 10,000 persons are displaced each month by the violence. Health and other basic services have been fractured as a result of the insecurity and resultant inaccessibility of certain areas, including Bujumbura rural provinces. Health and sanitary conditions are very severe, the malaria situation in Burundi remains alarming, and the incidence of HIV/AIDS is also on the rise. Thus, the political and humanitarian crisis in Burundi combine to create a very unstable and unsafe atmosphere for civilians caught in the middle of the conflict.

Summary of conclusions

(a) The civil war in Burundi has ended. Accordingly, the guidance in the Secretary of State for the Home Department v. Adan should not be applied in determining the risk of future persecution in Burundi.(b) Hutus are not, in general, at real risk of treatment amounting to persecution in Burundi.(c) A Hutu or a Tutsi woman is not, in general, at real risk of rape or sexual violence in Burundi on account of her race / gender.

Decision

The appeal is DISMISSED.

Ms. D. K. GILL

Vice President Date: 21 October 2004

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