CEDAW/C/55/D/35/2011 14. The author also reiterates that, while she is unaware whether her attackers were members of the Imberakure militia, they were supporters of the Government of Burundi. She rejects the State party’s contention that she did not qualify the rape as politically motivated and repeats that she has no doubt that the offenders were supporters of the Government (para. 7.3). 15. The rape as described by the author (by three men armed with knives) was not disputed as such by the State party, but the State party did dispute that such rape in such circumstances constituted a separate or intersecting ground for gender-related persecution under the Refugee Convention and sex-based discrimination against women under the Convention on the Elimination of All Forms of Discrimination against Women. Rape is the most notorious form of sexual violence directed against women because of their sex or gender. It constitutes a gender-related form of persecution under the Refugee Convention and sex/gender-based discrimination and violence against women under the Convention on the Elimination of All Forms of Discrimination against Women. Rape is considered to be brutal when it is gang rape, such as in the present case, but was completely neglected by the State party. Rape inflicts severe mental and physical pain and suffering and is also tearing apart social units. For that reason, it has been acknowledged as a particularly effective tool of genocide, 4 as a crime against humanity, as a war crime and as a human rights violation. 5 Rape has been used as a form of persecution by State and non-State actors and various country guidelines on refugee claims specifically list rape and fear of rape as a form of persecution.5 16. In the present case, the State party found the gang rape perpetrated by three man armed with knives unrelated to the author’s asylum claim and ignored its links with the overarching violence and impunity created by the conflict when it occurred. In so doing, the State party failed to adequately consider the environment surrounding the rape, including impunity for the crime. The State party failed to recognize the rape of the author as a separate or intersecting form of gender-related persecution and sex-based discrimination. In so doing, it failed to afford the author protection under the Convention on the Elimination of All Forms of Discrimination against Women and to exercise its positive duty to protect the author from being exposed to a real, personal and foreseeable risk of serious forms of gender-based violence if returned to Burundi. [Done in English. Subsequently to be issued also in Arabic, Chinese, French, Russian and Spanish.] __________________ 4 5 20/20 See Prosecutor v. Akayesu, Case No. ICTR-96-4-T, October 1998, International Criminal Tribunal for Rwanda, para. 731. See Valerie Oosterveld, “Women and girls fleeing conflict: gender and the interpretation and application of the 1951 Refugee Convention”, September 2012, p. 21. Available from www.refworld.org/docid/504dcb172.html. 13-43086