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Forced labour in Myanmar (Burma)

Report of the Commission of Inquiry
appointed under article 26 of the Constitution of the
International Labour Organization to examine
the observance by Myanmar of the
Forced Labour Convention, 1930 (No. 29)

Geneva, 2 July 1998


Contents

Part I. Establishment of the Commission

1. Filing of the complaint and appointment of the Commission

Part II. Procedure followed by the Commission

2. First Session of the Commission

3. Communications received by the Commission following its First Session

4. Second Session of the Commission

5. Visit by the Commission to the region

6. Third Session of the Commission

Part III. Allegations by the parties and historical background of the case

7. Summary of the complaint and the Government's observations

8. Historical background

Part IV. Examination of the case by the Commission

9. Context of general international law and requirements of the Forced Labour Convention, 1930 (No. 29)

10. Brief description of Myanmar

11. Legislation of Myanmar relevant to the case

12. Findings of the Commission concerning the facts

13. Findings as to compliance with the Convention

Part V. Conclusions and recommendations

14. Conclusions and recommendations

Appendices

  1. Supplementary evidence submitted by the complainants in October 1996
  2. Observation of the Myanmar Government on the initial complaint and supplementary evidence made by 25 Worker delegates to the 83rd Session of the International Labour Conference under article 26 of the ILO Constitution
  3. Rules for the hearing of witnesses
  4. List of documents received by the Commission following its First Session
  5. List of documents received by the Commission following its Second Session
  6. List of documents received in the course of the hearings
  7. Summaries of testimony
  8. List of documents received in the course of the visit to the region
  9. Maps of Myanmar
  10. Names, foreign terms and acronyms
  11. Samples of orders received by the Commission
  12. Order by the Chairman of the State Law and Order Restoration Council (SLORC) on the subject of "Prohibiting unpaid labour contributions in national development projects" dated 2 June 1995
  13. The Forced Labour Convention, 1930 (No. 29)


Part I

Establishment of the Commission


1. Filing of the complaint and appointment of the Commission

(1) Filing of the complaint

1. By a letter dated 20 June 1996 addressed to the Director-General of the ILO, 25 Workers' delegates to the 83rd Session of the International Labour Conference (June 1996)(1)  presented a complaint under article 26 of the Constitution against the Government of Myanmar for non-observance of the Forced Labour Convention, 1930 (No. 29), which it ratified on 4 March 1955 and which came into force for Myanmar on 4 March 1956. The complaint stated, in particular, that:

2. Supplementary evidence was submitted to the ILO in the name of the complainants by a letter dated 31 October 1996 and is appended to the present report.(2) 

(2) Provisions of the Constitution of the
International Labour Organization relating
to complaints concerning non-observance
of ratified Conventions

3. The procedure under which the Workers' delegates filed their complaint against the Government of Myanmar is set out in articles 26 to 29 and 31 to 34 of the ILO Constitution, which read as follows:

Article 26

Article 27

Article 28

Article 29

Article 31

Article 32

Article 33

Article 34

(3) Summary of the measures taken by the
Governing Body of the International Labour
Office following the filing of the complaint
and establishment of the Commission

4. At its 267th Session (November 1996), the Governing Body had before it a report by its Officers (GB.267/16/2) concerning the subject of the complaint. The report recalled, inter alia, the dates of ratification and entering into force of the Forced Labour Convention, 1930 (No. 29) (hereinafter "Convention No. 29") for Myanmar. It also pointed out that the 25 complainants were, on the date of filing the complaint, Workers' delegates of their countries to the 83rd Session of the International Labour Conference. Accordingly, they had the right to file a complaint under article 26, paragraph 4, of the Constitution, if they were not satisfied that the Government of Myanmar was securing the effective observance of Convention No. 29. In addition, the report indicated the following:

5. At the same session, the Governing Body took the following decisions:

(a) The Government of Myanmar should be requested by the Director-General to communicate its observations on the complaint so as to reach him not later than 31 January 1997.

(b) In accordance with article 26, paragraph 5, of the Constitution, the Governing Body should invite the Government of Myanmar to send a representative to take part in the proceedings of the Governing Body concerning this matter at its future sessions. When so inviting the Government of Myanmar, the Director-General should inform it that the Governing Body intended to continue its discussion of this case at its 268th Session, which was to take place in Geneva in March 1997.

6. In a letter dated 23 December 1996, the Director-General informed the Government of Myanmar of the decisions mentioned above.

7. By a letter dated 5 February 1997, the Permanent Mission of the Union of Myanmar in Geneva transmitted the observations of the Government of Myanmar on the complaint and the further supplementary evidence submitted. The document (without its confidential annexes) is appended to the present report (Appendix II).

8. At its 268th Session (March 1997), the Governing Body had before it another report of its Officers (GB.268/15/1) which noted that:

9. At the same session, the Governing Body decided that the Commission be composed as follows, as proposed by the Director-General (GB.268/14/8):

Chairperson: The Right Honourable Sir William DOUGLAS, PC, KCMG (Barbados), former Ambassador; former Chief Justice of Barbados; former Chairman, Commonwealth Caribbean Council of Legal Education; former Chairman, Inter-American Juridical Committee; former Judge of the High Court of Jamaica; Chairperson of the Committee of Experts on the Application of Conventions and Recommendations.

Members: Mr. Prafullachandra Natvarlal BHAGWATI (India), former Chief Justice of India; former Chief Justice of the High Court of Gujarat; former Chairman, Legal Aid Committee and Judicial Reforms Committee, Government of Gujarat; former Chairman, Committee on Juridicare, Government of India; former Chairman of the Committee appointed by the Government of India for implementing legal aid schemes in the country; member of the International Committee on Human Rights of the International Law Association; member of the Editorial Committee of Reports of the Commonwealth; Chairman of the National Committee for Social and Economic Welfare of the Government of India; Ombudsman for the national newspaper Times of India; Chairman of the Advisory Board of the Centre for Independence of Judges and Lawyers, Geneva; Vice-President of El Taller; Chairman of the Panel for Social Audit of Telecom and Postal Services in India; member of the United Nations Human Rights Committee; member of the Committee of Experts on the Application of Conventions and Recommendations.

Ms. Robyn A. LAYTON, QC (Australia), Barrister-at-Law; Director, National Rail Corporation; former Commissioner on Health Insurance Commission; former Chairperson of the Australian Health Ethics Committee of the National Health and Medical Research Council; former Honorary Solicitor for the South Australian Council for Civil Liberties; former Solicitor for the Central Aboriginal Land Council; former Chairman of the South Australian Sex Discrimination Board; former Judge and Deputy President of the South Australian Industrial Court and Commission; former Deputy President of the Federal Administrative Appeals Tribunal; member of the Committee of Experts on the Application of Conventions and Recommendations.


1.  The Workers' delegates were: Messrs. E. About-Risk (Lebanon), C. Agyei (Ghana), K. Ahmed (Pakistan), M. Blondel (France), W. Brett (United Kingdom) and U. Edström (Sweden), Ms. U. Engelen-Kefer (Germany), Messrs. R. Falbr (Czech Republic), C. Gray (United States), S. Itoh (Japan), Y. Kara (Israel), A. Lettieri (Italy), I. Mayaki (Niger), S. Mookherjee (India), B.P. Mpangala (United Republic of Tanzania) and J.-C. Parrot (Canada), Ms. P. O'Donovan (Ireland) and Messrs. F. Ramirez Leon (Venezuela), Z. Rampak (Malaysia), I. Sahbani (Tunisia), A. Sanchez Madariaga (Mexico), G. Sibanda (Zimbabwe), L. Sombes (Cameroon), L. Trotman (Barbados) and T. Wojcik (Poland).

2.  Appendix I.

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Forced labour in Myanmar (Burma)

Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organization to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29)
Geneva, 2 July 1998

 


Part II

Procedure followed by the Commission


2. First Session of the Commission

(1) Solemn declaration made by the members of the Commission

10. The Commission held its First Session in Geneva on 9 and 10 June 1997. At the beginning of its First Session, on 9 June 1997, each member of the Commission made a solemn declaration in the presence of the Director-General of the International Labour Office. In inviting the members of the Commission to make this declaration, the Director-General recalled the circumstances according to which the Commission was established and stressed that the Commission's task was "to ascertain the facts and to examine the issues arising in this case without fear or favour and in complete independence".

11. The members of the Commission then each made the following declaration:

(2) Adoption of the procedure to be followed by the Commission

12. The ILO Constitution does not lay down rules of procedure to be followed by a Commission of Inquiry appointed under article 26. When the Governing Body decided in March 1997 to refer the complaint to a Commission of Inquiry, it also specified that the Commission was to determine its own procedure in accordance with the provisions of the Constitution and the practice followed by previous commissions of inquiry.

13. In determining its procedure, the Commission recalled certain elements which characterized the nature of its work. As earlier commissions of inquiry had stressed, the procedure provided for in articles 26 to 29 and 31 to 34 of the Constitution was of a judicial nature.(3)  Thus, the rules of procedure had to safeguard the right of the parties to a fair procedure as recognized in international law.

14. Furthermore, the Commission considered that its role was not to be confined to an examination of the information furnished by the parties themselves or in support of their contentions. The Commission would take all necessary measures to obtain as complete and objective information as possible on the matters at issue.

15. Finally, the Commission was aware that its procedure had to ensure that the complaint would be examined expeditiously, avoiding undue delay and thereby ensuring a fair procedure.

16. Bearing these considerations in mind, the Commission adopted the rules of procedure which it intended to follow during the Second Session for the hearing of witnesses. These rules were brought to the attention of the Government of Myanmar and the complainants.(4) 

(3) Communication of additional information

17. The Commission examined the information submitted by the complainants and by the Government of Myanmar and took a series of decisions on the procedural arrangements for the examination of the questions at issue.

18. It decided to invite the complainants to communicate to it, before 15 August 1997, any additional information or observations, including any information on developments subsequent to the submission of the complaint. The Commission also invited the Government of Myanmar to communicate before 30 September 1997 any written statement it might wish to present. The Government and the complainants were informed that the substance of all information submitted to the Commission would be communicated to the other party to the proceedings.

19. Pursuant to article 27 of the ILO Constitution and in accordance with the practice of earlier commissions of inquiry, the Commission invited the governments of countries located in the South-East Asian region or having economic relations with Myanmar to make available to it any information in their possession bearing upon the subject-matter of the complaint.(5) 

20. Furthermore, the opportunity of presenting information relevant to the matters raised in the complaint was also offered to several intergovernmental organizations,(6)  to international and national workers' and employers' organizations,(7)  as well as to a number of non-governmental organizations operating in the legal and human rights spheres.(8)  In addition, companies mentioned in the complaint(9)  were also given the opportunity to submit information on the subject-matter of the complaint.

21. The Commission notified the governments, organizations and companies concerned that the substance of the information submitted by them would be transmitted to the Government of Myanmar and the complainants.

22. Finally, as regards any material submitted by governments, organizations or individuals that had not been invited to do so, the Commission requested its Chairperson to decide on a case-by-case basis the measures to be taken.

(4) Measures adopted with a view to the Second Session and the subsequent work of the Commission

23. The Commission decided to hold its Second Session in Geneva from 17 to 20 and 25 to 26 November 1997.

24. In communications dated 13 and 16 June 1997, the Commission invited the Government of Myanmar and the complainants to communicate before 30 September 1997 the names and description of any witnesses whom they wished the Commission to hear with an indication of the points on which it was desired to adduce evidence of each of the persons concerned. The Commission informed the parties that on the basis of the information thus obtained, it would decide whether to hear each of the witnesses in question.

25. In addition, the Commission drew the complainants' and the Government's attention to the fact that information about each witness would be disclosed to the other party in the absence of an application requesting confidentiality pursuant to Rule 7 of the Rules for the hearing of witnesses. If such an application were filed, it would be heard at the beginning of the Commission's hearing of witnesses. In the meantime, the points of evidence would nevertheless be disclosed to the other party. The Government of Myanmar was requested to assure in all cases that it would not obstruct the attendance and giving of evidence by witnesses and that no sanction or prejudice to witnesses or their families would occur as a consequence of them appearing or giving evidence.

26. The Commission asked the Government of Myanmar and the complainants to designate representatives to act on their behalf before the Commission. The complainants were also requested to consider the possibility of a joint representation.

27. Finally, the Commission authorized its Chairperson to deal on its behalf with any questions of procedure that might arise between sessions, with the possibility of consulting the other members whenever he might consider it necessary.

3. Communications received by the Commission following its First Session

28. Further to the requests addressed by the Commission to the Government of Myanmar, the complainants and the governments, organizations and companies referred to in paragraphs 19 and 20 above, the Commission received a number of communications, as set out in the present chapter. The Commission's analysis of factual information submitted is reflected in Part IV of the report (see below Chapter 12). The list of documents received by the Commission following its First Session is reproduced in Appendix IV to this report.

(1) Communications received from the parties

(a) Communications from the complainants

29. In communications received by the secretariat in the course of the months of July to October 1997, all the complainants informed the Commission of their wish to transfer all necessary powers to Mr. Bill Jordan, General Secretary of the International Confederation of Free Trade Unions (ICFTU), and/or to any person or persons whom he might wish to appoint for the purpose of representing him at any stage of the procedure before the Commission.

30. In a communication dated 11 August 1997, the ICFTU submitted on behalf of the complainants additional information on the occurrence of forced labour in Myanmar.(10)  The information included two ICFTU reports, entitled Burma: SLORC's private slave camp(11)  and Forced labour in Burma: An international trade union briefing;(12)  several documents relating to the withdrawal of trade preferences from Myanmar by the European Community;(13)  two reports from the Mon Information Service entitled Forced labour on the Ye-Tavoy railway and The situation of people living in the gas pipeline project region;(14)  a report from Images Asia entitled Nowhere to go;(15)  and a copy of a letter from the ICFTU to the complainants dated 14 July 1997.(16) 

31. In a communication dated 30 September 1997 regarding the November hearings, Mr. Bill Jordan, General Secretary of the ICFTU, submitted on behalf of the complainants a preliminary list of 13 witnesses who could be available to be heard. The letter also indicated that an application for protective measures pursuant to Rule 7 of the Rules for the hearing of witnesses(17)  would be made on behalf of several of the witnesses. The letter further indicated that the ICFTU would like to present to the Commission by 31 October 1997 further information concerning the witnesses, and requested the Commission to grant such an extension to the deadline for submitting information regarding witnesses.

32. In a further communication dated 14 November 1997, Mr. Bill Jordan submitted on behalf of the complainants a revised list of 13 witnesses, with names and descriptions. The letter also specified measures of protection sought for a number of the witnesses.

(b) Communications from the Government of Myanmar

33. In a communication dated 10 November 1997, the Government of Myanmar indicated that a High Level Coordination Committee comprising representatives from several ministries and governmental bodies had been set up, and that the Department of Labour would serve as secretariat to this Committee. This Committee had been set up to examine the substance of the communications received by the Commission from solicited sources, the majority of which had been forwarded to the Government in August. The Government noted that as this evidence was so vast and extensive the examination would take some time and thus it would not be ready to provide names of witnesses as requested. It indicated, however, that the Department of Labour would respond to questions on a case-by-case basis.

(2) Communications received from other sources

(a) Communications from member States under article 27 of the ILO Constitution

34. The Governments of Canada (communication dated 24 July 1997),(18)  India (communication dated 27 August 1997),(19)  Malaysia (communication dated 18 August 1997),(20)  New Zealand (communication dated 15 August 1997),(21)  Singapore (communication dated 5 July 1997)(22)  and Sri Lanka (communication dated 31 July 1997)(23)  indicated that they had no information relevant to the complaint before the Commission.

35. In a communication received on 14 August 1997, the Government of the United States submitted a large number of documents which provided information on the matters raised in the complaint. The letter indicated that the information had been compiled from public hearings on the subject of forced labour in Myanmar held by the United States Department of Labor in conjunction with the United States Department of State on 27 June 1997. The information submitted included the transcript of those hearings, the prepared statements of the witnesses and all other information submitted for the record, including written testimony, photographs and video tapes.(24) 

(b) Communications from intergovernmental organizations

36. In a communication dated 30 July 1997, the European Commission recalled that a Council Regulation of 24 March 1997 had temporarily withdrawn the benefit of the Community's Generalized Scheme of Preference from Myanmar, for reasons relevant to the complaint before the Commission. A copy of this Council Regulation was provided.(25) 

37. In a communication dated 6 August 1997, the Office of the United Nations High Commissioner for Refugees (UNHCR) provided comments and observations on the subject of forced labour in Myanmar's Rakhine State.(26) 

(c) Communications from non -governmental organizations

38. In a communication dated 13 August 1997, Amnesty International submitted information to the Commission on matters relevant to the complaint, including 15 documents published by Amnesty International between 1988 and 1997.(27)  The communication noted that Amnesty International had been investigating the practice of forced labour and forced portering in Myanmar for ten years, and that since the organization had not been allowed access to Myanmar, the information had been collected through interviews with persons who had left Myanmar.

39. In a communication dated 14 August 1997, Anti-Slavery International submitted a publication entitled Ethnic groups in Burma.(28) 

40. In a communication dated 13 August 1997, the Australian Council for Overseas Aid (ACFOA) submitted an excerpt from the US Embassy's July 1996 Country commercial guide for Myanmar,(29)  a publication entitled Holidays in Burma?,(30)  an ACFOA report entitled Slave labour in Burma,(31)  and several transparencies allegedly showing forced labour in Myanmar.(32) 

41. In a communication dated 30 July 1997, Burma Action Group submitted several documents relating mainly to the use of forced labour in connection with tourism.(33) 

42. In a communication dated 10 August 1997, Burma Centrum Nederland submitted 18 documents from a number of sources regarding forced labour in Myanmar's Rakhine State.(34) 

43. In a communication dated 28 August 1997, Burma Issues suggested that the Commission contact the Burma Peace Foundation, to whom the organization had provided relevant information in its possession.(35) 

44. In two communications dated 7 July 1997 and 14 August 1997, the Burma Peace Foundation submitted several thousand pages of information from a large number of sources relating to all aspects of the complaint, including a large number of photographs. Most of the information related to the period from 1995 to August 1997.(36) 

45. In a communication dated 12 August 1997, the Burma UN Services Office provided two reports (entitled Forced labor and Child labor)(37)  prepared by its Human Rights Documentation Unit and containing information on matters relevant to the complaint. The letter indicated that the reports were based on information provided by organizations which had been monitoring the human rights situation in Myanmar through the Thai-Myanmar border. The letter also indicated that the said Human Rights Documentation Unit would be publishing the Human Rights Yearbook on Burma 1996, which would include a chapter on forced labour, and that a copy of this book would be sent to the Commission.(38) 

46. In a communication dated 10 August 1997, Earth Rights International submitted two reports regarding forced labour in the Tanintharyi (Tenasserim) Division, entitled The Yadana gas pipeline project and The Ye-Tavoy railway.(39) 

47. In a communication dated 26 August 1997, the International Federation of Human Rights Leagues (FIDH) submitted a report regarding human rights abuses in relation to the Yadana gas pipeline project entitled La Birmanie, TOTAL et les droits de l'Homme: dissection d'un chantier.(40) 

48. In a communication dated 16 July 1997, the Friends World Committee for Consultation (Quakers) submitted a report by Images Asia entitled No childhood at all, regarding child soldiers in Myanmar.(41) 

49. In a communication dated 15 August 1997, Human Rights Watch/Asia submitted a copy of the prepared statement made by its Washington director before the United States hearings mentioned above (see above paragraph 35);(42)  a recent report on the human rights situation in Myanmar entitled No safety in Burma, no sanctuary in Thailand;(43)  and transcripts of interviews by Human Rights Watch with five persons from Myanmar conducted in Thailand in June 1997.(44) 

50. In a communication dated 13 August 1997, Images Asia submitted four reports and two video documentaries containing information on matters relevant to the complaint;(45)  a video address by Daw Aung San Suu Kyi to the European Union regarding labour practices in Myanmar and the transcript of that address;(46)  copies of a number of orders from the authorities mostly having to do with the requisition of labour obtained by Images Asia dated between 1992 and 1997;(47)  and a number of other reports containing relevant information relating to the Chin, Kayah, Mon and Shan States and the Tanintharyi (Tenasserim) Division.(48) 

51. In a communication dated 10 August 1997, the Karen Human Rights Group submitted a detailed summary of practices relevant to the complaint entitled Forced labour in Burma,(49)  analyses of portering and child labour in Myanmar,(50)  as well as 15 recent Karen Human Rights Group reports on the situation in the country.(51) 

52. In a communication dated 17 July 1997, Project Maje submitted a report detailing human rights abuses by specific military units in Myanmar, as well as several other recent reports from various organizations.(52) 

(d) Communications from companies mentioned in the complaint

53. In a communication dated 19 July 1997, Yukong Limited indicated that it had operated a block in Myanmar for three years and a few months from October 1989. According to the company's record, it did not drill a well in Htaw Tha village as alleged in the complaint. The company had moreover nothing to do with the construction of roads in Myanmar and was therefore not involved in building the road between Monywa and Khamti as alleged in the complaint.(53) 

54. In a communication dated 11 August 1997, TOTAL provided comments on the complaint before the Commission.(54)  Regarding work conditions, the communication noted that the gas pipeline was built by internationally renowned companies employing as many local workers as possible, thus making significant resources available to communities in the area. It indicated also that those companies offered work conditions equivalent to the conditions applied by TOTAL in all parts of the world, and that local employees were paid considerably more than the local wage average, with payment carried out under its supervision. The communication also noted that TOTAL and its partners had in 1995 decided to launch a large-scale socio-economic programme for the local communities. In response to the complaint before the Commission, the communication stated that the text repeated a number of unfounded allegations to which TOTAL had already replied in the course of the past years. One such reply, in the form of a letter from TOTAL to FIDH, was appended. The communication also indicated that there were a great number of minor as well as very serious factual errors in the text of the complaint. In particular, it pointed out that there was no connection between the pipeline and the Ye-Dawei (Tavoy) railroad, and that no communities had been displaced in the pipeline area since the initial contract was signed in 1992. It also drew the Commission's attention to articles written by 15 journalists, which were appended to the communication. Also appended were a copy of the TOTAL Myanmar Code of Conduct; procedures for land compensation; and a brochure entitled The Yadana project. The communication further indicated that TOTAL remained at the Commission's disposal for any supplementary information and would be willing to meet the members of the Commission, if they so wished.

4. Second Session of the Commission

(1) Hearing of witnesses

55. The Commission held its Second Session, which was principally devoted to the hearing of witnesses, in Geneva from 17 to 20 and 25 to 26 November 1997. This session consisted of 13 closed sittings, with the participation of the representatives of the complainants, Mr. Janek Kuczkiewicz and Mr. Colin Fenwick, assisted by Mr. Maung Maung and Mr. David Arnott, as well as Mr. Guy Ryder and Mr. Dan Cunniah, Director and Deputy Director respectively of the ICFTU Geneva office.

56. The Government of Myanmar was not represented and did not therefore occupy the seats reserved for it. Noting the absence of the Government, the Chairperson of the Commission recalled the communications addressed to the Government of Myanmar following the First Session of the Commission to transmit the information received from the complainants and a number of organizations, inform it of the dates on which the Second Session would be held and invite it to designate its representative.(55) 

57. The Commission requested the secretariat in limine litis to contact the Permanent Mission of Myanmar in Geneva by telephone. It was then informed that the Government of Myanmar did not intend to be represented at the Second Session of the Commission.

58. In the light of the foregoing, the Commission considered that the Government of Myanmar had been duly informed of the dates on which the Second Session would be held and that it had been given adequate opportunity to participate in the proceedings. The Commission therefore concluded that the Government of Myanmar had abstained in full knowledge that it was not availing itself of its right to be present at the hearings. In the circumstances and considering the time that had elapsed since the filing of the complaint, the Commission considered that it should proceed in order to ensure that the complaint was examined expeditiously, avoiding undue delay and thereby ensuring a fair procedure.(56) 

59. Before giving the floor to the representatives of the complainants, the Chairperson of the Commission recalled that, in accordance with the Rules for the hearing of witnesses which had been adopted at its First Session and transmitted to the parties, all witnesses would be heard in closed session unless the Commission decided otherwise in consultation with the party concerned. All information presented to the Commission in closed session would be treated as confidential by all persons permitted by the Commission to be present. In particular, no public statement about such information should be pronounced unless expressly authorized by the Commission. With regard to the presentation of evidence and in the absence of the representatives of the Government concerned, the representatives of the complainants and the witnesses would be allowed to make statements to provide the Commission with factual information on the case before it. Each witness would be questioned by the representatives of the complainants and by the Commission, although the Commission would retain its right to intervene at any stage and all questioning of witnesses would be subject to its control.(57) 

60. The Commission then heard the opening statements by a complainant and by the representatives of the complainants.(58)  It then requested them to present their evidence. The complainants presented 14 witnesses.

61. Before they gave their testimonies, the Chairperson of the Commission informed each of the witnesses of the conditions under which they would be giving their testimonies and indicated that the Commission had been established to examine the facts concerning the application by Myanmar of the Forced Labour Convention, 1930 (No. 29). The Chairperson also emphasized that reasonable latitude would be given to witnesses to furnish such information, but that statements of a political character or in any other way irrelevant to the issues referred to it would not be accepted. All information presented to the Commission in closed session would be treated as confidential by all persons authorized by the Commission to be present at the hearings. The Chairperson then invited each witness to make a solemn declaration identical to that provided for in the rules of the International Court of Justice by which they solemnly declared upon their honour and conscience that they would speak the truth, the whole truth and nothing but the truth. In cases in which interpretation was necessary, the Commission also required the interpreters to make a statement by which they undertook to faithfully translate the statements of the witnesses.

62. The witnesses who appeared before the Commission at its hearings may be divided into two groups. In the first place, 11 witnesses were invited to give testimony in view of the knowledge that they had acquired through research, investigations and interviews on the situation in Myanmar in general and on the allegations contained in the complaint in particular. Two of these witnesses also gave evidence of having personally witnessed events related to the complaint. As part of their evidence, all of these witnesses provided prepared written statements and also answered questions put to them. Of these witnesses, Ms. Donna Guest, representing the non-governmental organization Amnesty International, and Ms. Edith Mirante, representing the non-governmental organization Project Maje, described various forms of forced labour that they had identified in the course of their research on Myanmar. The following witnesses were then heard: Mr. Kevin Heppner, representing the non-governmental organization Karen Human Rights Group, who gave a systematic description of forced labour, particularly in the eastern part of Myanmar, Mr. Tom Kramer, representing the non-governmental organization Burma Centrum Nederland, who gave evidence on the delicate question of the situation of Rohingyas in Rakhine State, and Ms. Zunetta Liddell, representing the non-governmental organization Human Rights Watch/Asia, who addressed in particular issues relating to cultural tradition and prison labour. A representative of the non-governmental organization Images Asia, who requested that her name and other identifying data should not be divulged, gave evidence on the situation in various States and Divisions of Myanmar. Mr. Terry Collingsworth, representing the non-governmental organization International Labor Rights Fund, and Mr. Douglas Steele described, inter alia, the current situation in the case before the United States District Court, Central District of California involving the Federation of Trade Unions of Burma and the Yadana Natural Gas Project as well as the American company UNOCAL concerning the gas pipeline which crosses the Tanintharyi Division in the south of Myanmar; Ms. Christine Habbard of the International Federation of Human Rights also referred to the gas pipeline. Finally, two other persons submitted testimony that they had collected during investigations in the field.

63. Three other witnesses provided evidence of personal experience concerning the case. The Commission decided that these latter witnesses should benefit from measures of protection and that neither their real names nor identifying data would therefore be divulged. Nevertheless, once such data had been removed, their statements would be made public.

64. Furthermore, because of the young age of one of the witnesses, the complainants made a request for her to be heard in a private place and for the person who normally accompanies her to be present during her testimony. After consideration, the Commission decided to grant the measures of protection requested in order to create in so far as possible a favourable environment for her testimony. The Commission therefore decided that it would sit in a private place which would not be disclosed and that it would be accompanied by a representative of the complainants and two members of the secretariat. The person normally accompanying the witness could be present provided that the person did not try to communicate with the witness or otherwise interfere with the procedure. The Commission nevertheless reserved the right to decide at any time to ask that person to leave the room if it considered that the person's presence adversely affected the testimony.(59) 

65. Furthermore, the Commission authorized another witness who was unable to travel to Geneva for the session to give evidence by video conference.(60) 

66. Preparatory meetings between the Commission and the representatives of the complainants were held from time to time with regard to the procedure to ensure its proper functioning. The members of the Commission withdrew on several occasions to deliberate in private and ex parte to determine procedural issues raised during the hearings.

67. Various documents were submitted by the witnesses and the representatives of the complainants during the Second Session.(61)  Finally, following the presentation of the evidence, the representatives of the complainants made their concluding statements.

* * *

68. The information furnished during the hearings is examined in the analysis contained in Part IV of the report. The stenographic records of the hearings have been transmitted by the secretariat of the Commission to the Government of Myanmar. Furthermore, two copies of the records of the hearings have been placed in the library of the International Labour Office.

69. Following its Second Session, the Commission considered that it would be desirable to visit Myanmar in order to supplement the information in its possession. The Commission therefore requested the Government, in a letter dated 28 November 1997, to consent to a visit to Myanmar for a period of seven to ten days; it expressed the hope that the Government would offer its cooperation and assistance in this respect. In particular, the Commission emphasized the importance of its having full and free access to all persons whose knowledge and experience it considered relevant, including high-level governmental officials and any person or organization that the Commission might deem it necessary to meet. It added that the meetings should be held in circumstances providing full confidentiality to the persons interviewed and recalled that, pursuant to Rule 8 of the Rules for the hearing of witnesses, it expected the Government to give the assurance that no sanction or prejudice would occur to persons or their families as a consequence of their being associated with the work of the Commission.

(2) Communications received by the Commission following its Second Session(62)

(a) Communication from the Government of Myanmar

70. In a communication dated 12 December 1997, the Director-General of the Department of Labour of Myanmar informed the Director-General of the ILO that his Government was not able to authorize the visit by the Commission of Inquiry to Myanmar, since "such a visit would not contribute much towards resolving the case" and "would interfere in the internal affairs of [the] country".

71. In a communication dated 16 June 1998, the Permanent Mission of the Union of Myanmar to the United Nations Office and other International Organizations in Geneva transmitted a number of articles, news reports, reports, memoranda, correspondences and video tapes concerning labour-related activities and projects in Myanmar.(63)  The information highlighted in particular the use of members of the Tatmadaw for the construction of regional development projects and for the development of "border areas and national races", as well as documents on the situation of women and children and the participation of private companies in the transport and tourism sectors.

(b) Communications from non-governmental organizations

72. In a communication dated 10 March 1998, the Friends World Committee for Consultation (Quakers) requested information from the secretariat concerning the work of the Commission.

73. In a communication dated 27 March 1998, Images Asia transmitted a copy of a report on the situation in Chin State and Sagaing Division entitled All quiet on the western front?.(64) 

74. In the course of the months of April to June 1998, the following documents were also transmitted to the Commission: an Amnesty International report entitled Atrocities in the Shan State,(65)  transmitted by the Burma Peace Foundation; several reports by the Karen Human Rights Group,(66)  transmitted by that organization; and an EarthRights International report entitled School for Rape,(67)  transmitted by that organization.

(c) Communications from a company named in the complaint

75. In a letter dated 11 December 1997, the Commission gave the opportunity to TOTAL to provide additional information on a series of allegations naming the company that were made in the documents received by the Commission and the testimonies that it heard. In a communication dated 23 December, TOTAL replied to each of the points raised emphasizing that they contained few new elements to which the company had not already responded and that the allegations bore no relation to the real situation known on site.(68)  In particular, TOTAL stated that:

76. In a communication dated 4 March 1998, TOTAL transmitted a copy of a report drawn up by two members of the non-governmental organization Commission for Justice and Peace.(69)  The report was prepared at the request of UNOCAL Corporation and was intended to review labour conditions and socio-economic programmes at the Yadana gas pipeline project in Myanmar. Although the report stated that the question of how and whether foreign investment affected the viability of the current regime of the country was beyond the scope of the review, it concluded that each village had a better life because of the project. It added that the approach adopted should be a model for other international companies.

5. Visit by the Commission to the region

(1) Procedure followed by the Commission

77. The members of the Commission also considered it appropriate to supplement the information in their possession by visiting the region so as to meet the largest possible number of persons and organizations which could provide it with information on the practices referred to in the complaint.

78. This visit was particularly important after the refusal of the Government of Myanmar to receive the members of the Commission; it enabled the members of the Commission to form a direct impression of the situation described in the complaint, acquire personal knowledge of the circumstances described in the mass of documents submitted to them and assess the veracity of the allegations in the complaint. In doing so, the Commission exercised its fact-finding and inquiry functions.

79. With a view to making the optimum use of its time and determining the places that it wished to visit, the Commission established in advance a detailed plan of the journeys it intended to make and informed the competent authorities of its need to visit India, Bangladesh and Thailand during the period from 18 January to 20 February 1998.

80. During the inquiry that it carried out in the region, the Commission obtained personal testimonies from close to 250 persons. These testimonies were obtained with the assistance of persons and non-governmental organizations working in the areas concerned. At the request of the Commission, these people and organizations were asked to identify a pool of potential interviewees in relation to which the Commission gave explicit instructions that the witnesses be selected at random and not have been questioned previously on the matters that it was investigating, save preliminary identifying data. This request was made in order to avoid potential duplication with other statements already provided to the Commission as well as to minimize risk of any tainting of evidence together with ensuring currency of information. The Commission expressed the desire to cover as much of the territory of Myanmar as possible and in this spirit to interview people from the largest possible number of regions and belonging to a range of ethnic groups without distinction. Given the large number of interviews, priority was given to witnesses with the most recent experiences. The Commission also considered it important to include as witnesses persons who had served in the armed forces of Myanmar.

81. In view of the considerable number of persons that it could interview and in order to conduct as many interviews as possible, the Commission often split into three groups, with one member of the Commission and one member of the secretariat comprising a team. Each team then obtained testimony from witnesses. This procedure varied on one occasion in Thailand when the Commission was unable to obtain access to available witnesses. In that circumstance the Commission authorized a person who was able to obtain access to potential witnesses and who took the testimony of eight such witnesses. This person had previously given evidence before the Commission in Geneva(70)  concerning his professional experience and his taking of earlier statements from persons who had experienced or witnessed matters relevant to the inquiry. The Commission gave instructions to the person as to the scope of the interviews and the manner in which they should be carried out. The Commission, on the basis of this person's previous evidence and experience, as well as on the debriefing which followed the interviews, satisfied itself that the testimonies obtained were voluntary and reliable.

82. In making these arrangements it became obvious that witnesses feared reprisals from the authorities; the Commission in the interests of obtaining full and accurate information decided it was appropriate to grant some measures of protection under which names and other identifying information would not be divulged. However, the Commission considered it essential that the summaries of these testimonies, from which this information had been removed, should be made public and form part of the report.(71) 

83. The Commission took testimonies from witnesses on an individual basis. Exceptions were made in some cases where persons were from the same family or locality or interview conditions were not conducive to such an approach. In these cases a person's statement was taken and corroborated by others in a small group. In cases in which interpretation was necessary, the Commission selected the interpreters in advance and required them to make a statement in which they undertook to translate faithfully the statements of the witnesses. In addition, a member of the secretariat, fluent in Burmese, was able to ascertain that the translations were true.

84. Men, women and children were interviewed. In the latter case in particular, the Commission assured itself that the witness understood the mandate of the Commission and the need to tell the truth. The interviews were conducted under conditions ensuring full confidentiality to the persons concerned. Since several persons interviewed now lived in distant areas which were closed to the members of the Commission, they were transported and interviewed under conditions ensuring the safety of all concerned. For each witness, the Commission commenced by obtaining the identifying information necessary for the purposes of verifying, comparing and corroborating the various accounts of the facts. It then questioned the witnesses on their relevant personal experience of the practices referred to in the complaint and verified in particular the year, duration, location, context and conditions under which such practices were carried out. Furthermore, it questioned the witnesses on experiences that others may have recounted to them, including their family, close friends and any other persons. Each witness was given the possibility of making a personal statement. Where appropriate, the Commission also questioned witnesses on their political affiliations or allegiances.

85. The method of recording information was by handwritten notes taken by the Commission; because of their copious nature were later summarized. The Commission abandoned the taking of tape-recordings because of physical difficulties of use, particularly with interpreters; also interviewees felt less intimidated, given the environment in which many interviews took place: in huts, on the ground, out in the open and in a factory.

(2) Persons and witnesses interviewed

86. The Commission went to India, Bangladesh and Thailand to meet with persons able to provide it with relevant information concerning the complaint. Their ages varied between 12 and 72; the vast majority of the factual elements presented by these persons occurred over the last year or two.

(a) India

87. The Commission conducted interviews on 19, 20 and 22 January 1998 in Delhi. On that occasion, it held interviews with 17 people from the Chin and Rakhine States belonging to the Chin and Rakhine ethnic groups.(72)  Despite its requests, the Commission was not however able to obtain in due time the necessary authorizations from the Government of India to visit the State of Manipur in the north-eastern region of India in which other persons coming from Myanmar and in possession of information which could have been of interest to the Commission were alleged to have found refuge.

88. On 22 January 1998, the Chairperson of the Commission paid a courtesy visit to the Secretary of the Ministry of Labour of the Government of India outlining in general the importance of the inquiry and the Commission's work in India.

(b) Bangladesh

89. The Commission travelled to Bangladesh, where it stayed from 23 January to 3 February. While in Dhaka from 23 to 27 January the Commission met representatives of the United Nations High Commissioner for Refugees and non-governmental organizations who could provide it with information identifying the most appropriate places to meet persons with personal knowledge of the matters referred to in the complaint.

90. From 27 January to 3 February 1998, the Commission visited Cox's Bazar, a town located a few kilometres from the border between Bangladesh and Myanmar. A total of over 71 testimonies were gathered from interviews held in the town and the neighbouring areas.(73)  Most of the persons interviewed were of Rohingya origin and came from the northern part of Rakhine State, which some of them had only left a few days earlier. Several of them had no fixed accommodation and were forced to live with no shelter.

91. The Chairperson of the Commission visited the Ministry of Labour and Manpower of Bangladesh on 2 February 1998 in Dhaka. During his visit, the Chairperson explained the origin and mandate of the Commission and the reasons for its presence in the region.

(c) Thailand

92. The Commission visited Thailand from 3 to 20 February 1998. From 5 to 9 February, it went to the locality of Mae Hong Son, a town situated near the Thai border with Kayah State in Myanmar. It passed through the cities of Bangkok and Chiang Mai, where it met representatives of non-governmental organizations who were able to provide it with recent information on the situation in Myanmar.

93. In Mae Hong Song, the Commission met 53 people from various States in Myanmar and belonging to the Karenni, Karen, Burman, Shan and Pa-o ethnic groups.(74)  The interviews were conducted in three locations near to the town.

94. From 10 to 16 February 1998, the Commission then visited Mae Sot, a Thai town located near to the border with Kayin State, where it met 56 people from the Muslim, Karen, Burman, Shan and Pa-o ethnic groups.(75)  From 15 to 17 February, one of the members of the Commission, accompanied by a member of the secretariat, visited Kanchanaburi, a Thai province bordering Karen and Mon States and the Tanintharyi Division. It held 12 interviews there with people from the Mon and Karen ethnic groups.(76) 

95. After leaving Mae Sot a little earlier to return to Bangkok, the Chairperson on 15 February met with members of the National Coalition Government of the Union of Burma (NCGUB).

96. The members of the Commission met once again on 18 February in Bangkok. The next day they paid a courtesy visit to the Ministry of Labour of Thailand and met a representative of a non-governmental organization concerned with forced labour in Myanmar.

97. Since two members of the Commission had to leave Thailand on early flights, a single member remained on 20 February to conduct interviews at a location near to Bangkok with 32 persons from the Karen, Burman, Mon and Rakhine ethnic groups.(77) 

98. At the end of its visit to the region, the Commission decided to meet once again in Geneva from 29 June to 2 July 1998, to prepare and adopt its final report.

 

6. Third Session of the Commission

99. The Commission held its Third Session in Geneva from 29 June to 2 July 1998. At this session, the Commission completed the preparation of its report. The Commission closed this last session by signing the report, which it presented to the Director-General of the International Labour Office.

 


3.  See Report of the Commission Appointed under Article 26 of the Constitution of the International Labour Organisation to Examine the Complaint Filed by the Government of Ghana concerning the Observance by the Government of Portugal of the Abolition of Forced Labour Convention, 1957 (No. 105), (1962) Official Bulletin, Vol. XLV, No. 2, Supplement II, para. 15; Report of the Commission Appointed under Article 26 of the Constitution of the International Labour Organisation to Examine the Complaint Filed by the Government of Portugal concerning the Observance by the Government of Liberia of the Forced Labour Convention, 1930 (No. 29), (1963) Official Bulletin, Vol. XLVI, No. 2, Supplement II, para. 381; Report of the Commission Appointed under Article 26 of the Constitution of the International Labour Organisation to Examine the Complaints concerning the Observance by Greece of the Freedom of Association and Protection of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), Made by a Number of Delegates to the 52nd Session of the International Labour Conference, (1971) Official Bulletin, Vol. LIV, Special Supplement, No. 2, Appendix IV, para. 8; Report of the Commission instituted under article 26 of the Constitution of the International Labour Organisation to examine the complaint on the observance by Poland of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), presented by delegates at the 68th Session of the International Labour Conference, (1984) Official Bulletin, Vol. LXVII, Special Supplement, Series B, para. 5; Report of the Commission of Inquiry appointed under article 26 of the Constitution to examine the observance by Nicaragua of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), (1991) Official Bulletin, Vol. LXXIV, Supplement 2, Series B, para. 5; Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organisation to examine the observance by Romania of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), (1991) Official Bulletin, Vol. LXXIV, Supplement 3, Series B, para. 4.

4.  The text of these rules is appended to the present report (Appendix III).

5.  An invitation was sent to the Governments of the following countries: Australia, Bangladesh, Cambodia, Canada, China, France, India, Indonesia, Japan, Republic of Korea, Lao People's Democratic Republic, Malaysia, New Zealand, Papua New Guinea, Philippines, Singapore, Sri Lanka, Thailand, United States of America and Viet Nam.

6.  The United Nations, including the United Nations High Commissioner for Refugees; the European Union; the Association of South-East Asian Nations (ASEAN).

7.  Having consultative status with the ILO: International Confederation of Free Trade Unions, World Confederation of Labour, World Federation of Trade Unions, International Organization of Employers. Others: International Federation of Agricultural Producers, International Federation of Chemical, Energy, Mine and General Workers' Unions, Brotherhood of Asian Trade Unionists, International Union of Food and Allied Workers' Associations, ASEAN Confederation of Employers, Federation of Trade Unions of Burma, Union of Myanmar Chamber of Commerce and Industry.

8.  Non-governmental organizations: Action contre la faim, Aide Médicale Internationale, Amnesty International, Anti-Slavery International, Article 19, Australia Burma Council, Australian Council for Overseas Aid, Burma Action Group, Burma Border Consortium, Burma Centrum Nederland, Burma Donors' Secretariat, Burma Issues, Burma Peace Foundation, Burmese Relief Centre, Burma UN Services Office, Burmese Women's Union, Danish Burma Committee, Earth Rights International, Euro-Burma Office, Friends World Committee for Consultation (Quakers), Health Unlimited, Human Rights Watch (Asia), Images Asia, International Commission of Jurists, International Federation of Human Rights, International Human Rights Law Group, International League for Human Rights, International League for the Rights and Liberation of Peoples, International Rescue Committee, International Work Group for Indigenous Affairs, Investor Responsibility Research Center, Jesuit Refugee Service, Karen Human Rights Group, Lawyers' Committee for Human Rights, Maryknoll Thailand, Médecins Sans Frontières (France), Médecins Sans Frontières (Holland), Médecins Sans Frontières (Thailand), Minority Rights Group, Mon Information Service, Project Maje, Shan Human Rights Foundation, Southeast Asia Information Network and Tourism Concern.

9.  TOTAL, UNOCAL Corporation, and Yukong Limited.

10.  Doc. 35. (Documents referred to in this chapter are those received by the Commission following its First Session and listed in Appendix IV.)

11.  Doc. 36.

12.  Doc. 45.

13.  Docs. 37-41.

14.  Docs. 42 and 43.

15.  Doc. 44 (same as doc. 125, q.v.).

16.  Doc. 46.

17.  See Appendix III for the text of the Rules.

18.  Doc. 34.

19.  Doc. 159.

20.  Doc. 152.

21.  Doc. 105.

22.  Doc. 2.

23.  Doc. 56.

24.  Docs. 57-84.

25.  Doc. 11.

26.  Doc. 33.

27.  Docs. 85-101.

28.  Doc. 153.

29.  Doc. 101.

30.  Doc. 102.

31.  Doc. 103 (a copy of this document can be found in doc. 1 at p. 227 ff.).

32.  Doc. 104.

33.  Docs. 12-14.

34.  Docs. 106-124.

35.  Doc. 161.

36.  Docs. 1, 154-158.

37.  Docs. 73 and 74.

38.  Doc. 164.

39.  Docs. 162 and 163.

40.  Doc. 160 (English version in doc. 154 at p. 4962 ff.).

41.  Doc. 3.

42.  Doc. 149.

43.  Doc. 150.

44.  Doc. 151.

45.  Docs. 125-128, 131 and 132.

46.  Docs. 129 and 133.

47.  Doc. 130.

48.  Docs. 134-148.

49.  Doc. 32.

50.  Docs. 16 and 21.

51.  Docs. 15, 17-20 and 22-31.

52.  Docs. 6-10.

53.  Doc. 4.

54.  Docs. 48-55.

55.  See in particular para. 26 above. Reminders were sent to the Government by the secretariat on 15 Oct. and 9 and 12 Nov. 1997.

56.  Stenographic record of the first sitting, 17 Nov. 1997, pp. 2-3.

57.  ibid., pp. 6-7.

58.   The following persons made opening statements: Mr. William Brett, complainant, Worker representative of the United Kingdom and Chairman of the Workers' group of the Governing Body of the ILO; Messrs. Kuczkiewicz and Fenwick, designated representatives of the complainants; and Mr. Maung Maung, advisor to the complainants.

59.  Stenographic record of the fourth sitting, 19 Nov. 1997, p. 1.

60.  Stenographic record of the tenth sitting, 25 Nov. 1997, p. 1.

61.  The list of documents submitted during the hearings is reproduced in Appendix VI to this report.

62.  The list of documents received by the Commission following its Second Session is reproduced in Appendix V to this report.

63.  Doc. 176.

64.  Doc. 167.

65.  Doc. 168.

66.  Docs. 169-172, 174 and 175.

67.  Doc. 173.

68.  Doc. 165.

69.  Doc. 166.

70.  Min Lwin appeared before the Commission on 18 and 19 Nov. 1997. See Ch. 4, Second Session of the Commission, paras. 55 to 68.

71.  See Appendix VII. In addition, Appendix VIII to this report lists the documents submitted to the Commission during its visit to the region.

72.  Appendix VII, Witnesses 1 to 17.

73.  ibid., Witnesses 18 to 88.

74.  ibid., Witnesses 89 to 141.

75.  It was during this period that the Commission authorized the taking of testimonies referred to in para. 81.

76.  ibid., Witnesses 142 to 209.

77.  ibid., Witnesses 210 to 241.

 

Part III

Allegations by the parties and historical
background of the case

 


7. Summary of the complaint and
the Government's observations

100. In their complaint and supplementary evidence, the complainants referred to earlier findings by ILO supervisory bodies concerning non-compliance with the forced labour Convention by Myanmar. The complainants alleged that, far from acting to end the practice of forced labour, the Government of Myanmar was still engaged actively in its promotion, so that it was today an endemic abuse affecting hundreds of thousands of workers who were subjected to the most extreme forms of exploitation. The complainants submitted detailed factual allegations concerning both the systematic use of forced labour in practice and the existence of national legislation authorizing or condoning the imposition of forced labour; the complainants also presented detailed legal conclusions concerning the alleged incompatibility of national law and practice with the Convention. The allegations of fact and legal conclusions of the complainants are summarized(78)  as follows.

(1) Factual allegations submitted by the complainants

101. According to the complainants, Myanmar is, and has been, conducting a widespread practice of exacting forced labour in the country. The practice, which affects hundreds of thousands of residents of Myanmar, involves the use of forced labour for public purposes as well as for private benefit. The labour is exacted from men, women and children of villages and towns in various parts of the country, as well as from prisoners. Along with the forced labour, the military Government is perpetrating severe physical and sexual abuses on many forced labourers, including beatings, rape, executions, and deliberate deprivation of necessary food, water, rest, shelter, and access to medical care.

102. The complainants specify that forced labour practices for public purposes include the following: (1) portering, combat, mine-sweeping, and sexual services for military troops; (2) construction and other heavy labour on development and infrastructure projects that do not benefit and, most often, harm the population from which forced labour is exacted; and (3) heavy work on military construction projects. The practice of forced labour for private benefit is to: (1) promote joint venture developments, including the country's oil and natural gas reserves; (2) encourage private investment in infrastructure development, public works, and tourism projects; and (3) benefit the private commercial interests of members of the Myanmar military.

103. The complainants also state that the Government has represented that it will use only armed forces henceforth on, in its words, "major community development projects"; in the view of the complainants, that representation provides no assurances that the Government will stop the use of forced labour on other projects, including support and portering services for the military, or that forced labour on "major projects" could not resume at any time.

104. The complainants refer to two laws currently in force in Myanmar which authorize forced or compulsory labour to be exacted from the people and provide for fines and imprisonment of those who fail to comply. According to the complainants, those laws, the Village Act, 1908 and the Towns Act, 1907, fall outside the scope of a law apparently in effect that makes "unlawful" exaction of labour a criminal offence. Other recently uncovered secret military directives implicitly legitimize forced labour practices on development projects by urging that payment be made to forced labourers and that the "misery and sufferings" associated with "undesirable incidents" during forced labour be curbed.

(2) Legal conclusions submitted by the complainants

105. The complainants allege that the Government of Myanmar has failed entirely to secure the effective observance of Convention No. 29. It deliberately engages in the practice of forced labour within the meaning of the Convention and commits gross human rights abuses in the context of that practice. It has refused to repeal laws that authorize the practice or to properly make the exaction of forced labour a penal offence. It further has refused to ensure that penalties imposed by law are really adequate and strictly enforced as required by the Convention.

106. According to the complainants, the Government has sought to characterize the practice of forced labour under menace of threats, abusive practices, fines, and imprisonment as the voluntary contribution of the people of Myanmar pursuant to Buddhist cultural tradition. The evidence demonstrates not only that non-Buddhist minorities are at times subjected disproportionately to forced labour requirements, but also that the practice is conducted under threat of legal penalties and use of physical force.

107. The complainants submit that none of Myanmar's forced labour practices qualifies as an exception from the Convention's general prohibitions on the use of forced or compulsory labour. The practices fail to satisfy any of the following five narrow exceptions allowed under the Convention: compulsory military service; normal civic obligations; labour as punishment for duly convicted prisoners; work carried out in circumstances of emergency threatening the population; and minor communal service. In addition, whether a forced labourer is paid makes no difference to the determination of whether the conduct qualifies under any of the five exceptions, despite the fact that the Government has sought to defend its practices by alleging that its forced labourers are paid.

108. According to the complainants, no transitional period applies to exempt Myanmar from its obligation under Convention No. 29 to suppress forced labour in all its forms. The Committee established by the ILO to review the ICFTU's article 24 representation on forced portering in Myanmar determined that no transitional period applied.(79)  The period of 40 years since Myanmar ratified the Convention constitutes more than ample time to make required alterations to law and practice to conform to the Convention's requirements. Moreover, the complainants state that the Government itself has admitted that no transitional period applies: such admissions were made in the article 24 proceeding and recently in its observations made to the United Nations relating to reports of forced labour practices.

109. Finally, in the view of the complainants, even if a transitional period applied in this case, the evidence demonstrates that none of the conditions and guarantees required to be met during the transitional period are satisfied in Myanmar. Forced labour is used for private benefit; forced labour is used widely and systematically as a regular part of the Government's budget; and the practice of forced labour is in no way limited to use as an exceptional measure. Further breaches of the conditions and guarantees required under the transitional provisions of the Convention include: inadequate or non-existent regulation of forced labour practices; work that is not of important direct interest for the community from whom the labour is exacted and that is not of imminent necessity; work that lays too heavy a burden on the population; forced labour exacted as a tax without the safeguards required by the Convention, including allowing the forced labourers to remain at their habitual residence and respecting religion, social life, and agriculture; conscripting women, children, and men over 45 into forced labour; failing to limit forced labour duty to 60 days per year; failing to provide cash remuneration in rates of pay equal to the prevailing wage for voluntary labour and failing to observe normal working hours and a weekly day of rest; failing to apply workers' compensation laws and, in any case, failing to meet the responsibility of maintaining the subsistence of any person incapacitated as a result of performing forced labour; failing to ensure that people are not moved to different parts of the country in which their health may be affected or, where that is necessary, to ensure gradual acclimatization; failing for extended periods of forced labour, to ensure appropriate medical care and subsistence of the workers' families and providing for the cost of the workers' journeys to and from the workplace; and failing to abolish forced portering "within the shortest possible period" after ratification.

(3) The Government's observations(80)

110. Before responding to the complainants' allegations, the Government described its initiatives for the emergence of a peaceful, modern and developed nation, its political, economic and social objectives, and the benefits which the local population and the nation as a whole draw from the building of infrastructures throughout the country, in particular the building of new railroads, but also motor roads, irrigation facilities, schools, hospitals, market places, parks and new towns through the collective efforts of the State, the people and the members of the Myanmar armed forces (Tatmadaw).

111. In addressing the allegations made by the complainants, the Government has placed its refutation under three main headings: (i) public purposes or public sector; (ii) private benefit or private sector; (iii) the law.

(a) Public purposes or public sector

(i) Portering

112. Since 1948, successive Myanmar governments have had to deal with insurgent groups. Therefore, under certain circumstances the Myanmar armed forces had to employ porters for transportation of supplies and equipment over difficult terrain in remote places and mountains near the frontier areas where military campaigns against the armed groups were launched. The Government stated that the porters employed were not treated harshly and inhumanely by the Myanmar armed forces. Criteria for the recruitment of these porters required that they must be unemployed casual labour, that they must be physically fit to work as porters, and that a reasonable amount of wages must be fixed and agreed to before recruitment. Also, these porters were never required to accompany the troops in the actual scene of the battle, nor exposed to danger. In the unfortunate event of loss of limb unconnected with any armed conflict, they or their family were equitably compensated in accordance with the prevailing law. The authorities wished to point out that there was no recruitment of women, children and elderly people as porters at any time.

113. The Government also stated that the Tatmadaw were under a strict military code of conduct, were highly disciplined, and did not resort to onerous or oppressive actions against the people. Any isolated aberration was met with severe punishment meted out by a military court. Finally, the Government asserted that the use of porters had significantly diminished as a result of fewer military operations against the armed groups, most of which had returned to the "legal fold" and were taking part in the economic and social development and the country. In this regard, the Government also referred to excerpts from the press conference given by United States Presidential Envoys, Ambassador Mr. William Brown, and Senior Official of the National Security Council of the White House, Mr. Stanley Roth, on 15 June 1996 at the Foreign Correspondents' Club of Thailand, appended to its observations as "Annexure I".

(ii) Construction of development and infrastructure
projects by the Government

114. Among the development and infrastructure projects undertaken by the Government were the Aungban-Loikaw railroad construction, the Ye-Dawei (Tavoy) railroad, the Pathein airstrip extension, the construction of dams and embankments, etc. For all these projects, and other projects not mentioned, the Government asserted that there was no forced labour involved. The use of labour was purely voluntary, and it was remunerated equitably. No coercion whatsoever was involved in the recruitment of labour, which was done according to the local recruitment procedures of employment exchanges established by the Department of Labour. There were altogether 78 township-level labour offices all over the country operating under the Employment and Training Act and the Employment Restriction Act. With a view to substantiating the above facts, the Government stated it had made field surveys in the respective areas to verify that the recruitment of labour was done in accordance with the procedure. Detailed statements and photographs of some local people interviewed were annexed to the Government's observations as (confidential) "Annexures IIa-IIg".

115. The Government stated that it had taken concrete actions regarding the use of civilian labour in infrastructure building and development projects. A further and unprecedented step had been taken in using members of the Tatmadaw in these projects. There was to be no more recruitment and deployment of local populace in any development projects. Tatmadaw were now taking part in these works to serve the interests and general well-being of the people in addition to the primary responsibility of defending the country. One concrete example was the recent participation of Tatmadaw in railroad construction and other public works in the Mandalay, Magway and Tanintharyi Divisions. Photographs of Tatmadaw at the respective worksites were annexed to the Government's observations as "Annexure III". The Government also pointed out here that some prisoners who were convicted of criminal offences such as murder, rape, etc. (common criminals) were sometimes employed in road construction.

(iii) Hotel industries in Myanmar

116. The Government stated that, upon its invitation, foreign investors had built hotels in Yangon, Mandalay, Bagan, etc. under a system known as Build, Operate and Transfer (BOT). These foreign companies with 100 per cent investment had their own contractors who in turn appointed local subcontractors, who recruited local skilled, semi-skilled or unskilled workers. The competition or demand for local workers was very keen, inducement in the form of high wages was offered by the foreign companies and the question of forced labour did not arise. In addition, local labour law and procedures saw to it that equitable wages and proper conditions of work were observed by the companies. In most cases these subcontractors went through the labour exchanges run by the Department of Labour. Although the Ministry of Hotels and Tourism was responsible for the promotion of building hotels in Myanmar, the Ministry played no part in the employment of the construction workers.

117. With regard to allegations that forced labour was used in the construction of "barracks", the Government stated that accommodation for border policing units in Rakhine State were constructed by private building contractors employing voluntary paid labour. In this regard, the Government referred to two "Contract Agreements" between responsible officials of the border policing unit and local building contractors, appended as "Annexures IVa and IVb" to its observations.

(b) Private benefit or private sector

(i) Construction of the Yadana natural gas pipeline

118. With regard to allegations that forced labour was being used for the construction of projects for the development of oil and gas reserves, in particular the Yadana gas pipeline project, a joint venture between a United States oil company (UNOCAL), a French oil company (TOTAL), and the Myanmar Oil and Gas Enterprise (MOGE), the Government stated that the allegations were totally unfounded. The Government quoted corresponding statements made by Mr. Roger Beach, Chairman and Chief Executive Officer (CEO) of UNOCAL, and Mr. John Imle, President of UNOCAL, in televised interviews conducted by CNN, the texts of which were appended as "Annexures V and VI" to the Government's observations. Moreover, the Myanmar authorities conducted field observations at some of the areas described in the supplementary evidence. Statements of some workers at the Ye-Dawei (Tavoy) railroad construction sites and some employees of the Yadana natural gas pipeline project were appended to the Government's observations as (confidential) "Annexure VIIa and b, and VIIf".

(c) The law

119. The Government indicated that, with a view to bringing the Towns Act, 1907 and the Village Act, 1908 into line with the current positive changes in the country, the authorities concerned had taken action on the entire national legislation of Myanmar which encompassed a total of more than 900 laws. These laws had been reviewed and redrafted, including the Towns Act and the Village Act which were enacted when Myanmar was under colonial rule. The Government stated that the new laws would be in consonance with the new executive legislative and judicial systems which were to be brought about under a new state Constitution. The National Convention whose task was to lay down basic principles to be enshrined in the new state Constitution had already adopted 104 basic principles. Among these was the principle that "the State shall enact necessary laws to protect the rights of workers". The authorities were keenly aware of the criticisms made by some delegates at the Conference over the powers available under the Towns and Village Acts and, therefore, in the redrafted version which was being prepared the Government said the clauses which attracted so much attention of the delegates had been deleted.

(d) Conclusion

120. In conclusion, the Government indicated that the Myanmar authorities were aware of the criticisms made by some Worker delegates relating to the use of labour in Myanmar for national development projects. A considerable portion of the criticisms were unfortunately based on biased and specious allegations made by expatriates living outside Myanmar who wished to denigrate the Myanmar authorities for their own ends. The Myanmar authorities had made an effort to answer, in all sincerity, the questions addressed to them.

8. Historical background

A. Earlier reports and statements by the
Government of Burma/Myanmar on the
application of the Forced Labour Convention,
1930 (No. 29), comments and representation
by industrial organizations, and observations,
findings and requests by ILO supervisory bodies

(1) Reports under article 22 of the ILO Constitution
and statements to the International Labour
Conference (ILC) presented by the Government,
1960 to 1992, and corresponding comments

121. In its first report (received 21 May 1960) on the measures taken to give effect to the provisions of the Forced Labour Convention, ratification of which was registered on 4 March 1955, the Government of the Union of Burma indicated, under Article 1 of the Convention, that: "Since forced labour is non-existent in this country, no recourse to forced or compulsory labour in any form is authorised in this country."(81)  Having indicated, in relation to Articles 6 to 17 of the Convention, that in view of the non-existence in the country of forced labour (and of chiefs of the kind envisaged in Articles 7 and 10), the question of compliance with the requirements under these Articles did not arise, the Government reported under Article 18 that: "Officials of administration in this country, when they are on government tours in the rural areas, use the services of porters, boatmen, bullock carts, etc. But they are not employed in the sense of forced or compulsory labour as envisaged in this Convention." Finally, under Article 25 of the Convention, the Government referred to section 374 of the Penal Code, under which: "Whoever unlawfully compels any person to labour against the will of that person, shall be punished with imprisonment of either description for a term which may extend to one year, with fine, or with both."

122. In a request addressed to the Government in 1964 and repeated in 1966 and 1967, the ILO Committee of Experts on the Application of Conventions and Recommendations referred to section 11(d) of the Village Act, under which persons residing in a village-tract shall be bound, on the requisition of the headman or of a rural policeman, to assist him in the execution of his duties prescribed in sections 7 and 8 of the Act. These duties consist, inter alia, of the obligation "to collect and furnish ... guides, messengers, porters, supplies of food, carriage and means of transport for any troops or police posted in or near or marching through the village-tract or for any servant of the Government travelling on duty". The Committee noted that corresponding provisions concerning persons residing in towns are contained in section 9 of the Towns Act.(82)  It asked the Government to indicate whether these provisions of the Village Act and the Towns Act were still in force, and if so, what measures the Government proposed to take to bring the legislation into conformity with the Convention.

123. In its reply received 15 June 1967, the Government indicated that: "Although the provisions in question of the Village Act and Towns Act, which were established during the colonial rules, are still in force, the authorities concerned no longer exercise the power accordingly vested in them. And ... those laws and rules which do not meet the standards and needs of the country's new social order shall have to cease to exist. Appropriate new laws in place of the old ones will be made soon." In reply to further requests by the Committee of Experts for information on the measures taken, the Government repeated in a report received 7 June 1973 that: "The Village Act and the Towns Act are framed while Burma was under foreign domination, there is no recourse to section 11(d) of the Village Act and section 9 of the Towns Act, though they have not been repealed officially."

124. In its report received 19 February 1974, the Government again stated that the provisions of the Towns Act and the Village Act were being reviewed along with other acts so as to fall in line with the new Constitution which guaranteed the freedom and the right to work.

125. In replies to further reminders by the Committee of Experts the Government indicated in 1978 that: "A new law to replace the Towns Act and the Village Act is now being drafted by the authorities concerned. A copy of the new law will be transmitted to the Committee of Experts when enacted."

126. In 1982, the Government stated that a new Law Commission was constituted and "New draft laws which revised the old ones (which empowered headmen and rural policemen to impose compulsory portage on residents of the labouring class ...) will eventually be reviewed by the Commission and submitted to the Pyithu Hluttaw [People's Assembly] to bring legislation into conformity with the Convention."

127. In 1983, the Government restated that: "The provisions of the Towns and the Village Act which empower headmen and rural policemen to impose compulsory portage on residents of the labouring class ... being legacies from the British colonial rule, have become obsolete and are no longer applied." In the same reply (received 13 October 1983) the Government added that with the promulgation of the People's Council Law in 1974, the administrative power formerly entrusted to a single headman was vested with a group of people's representatives who collectively managed the affairs of the village, and that: "Among the duties and functions of the Ward and Village Tract People's Councillors as prescribed in the People's Council Law, 1974, and the subsequent law prescribing the duties and functions of the People's Councils at different levels and that of Executive Committees at different levels, 1977, there is no such provision as compulsory portage on residents or the labouring class."

128. In its report received 21 October 1985, the Government repeated that the People's Council Act, 1974 contained no provisions that authorized the People's Councils at different levels to have recourse to forced or compulsory labour, and that: "Any significant progress towards the repealing of the provisions incompatible with the Convention will be reported at once."

129. In a "consolidated reply" attached to the Government's report received 16 November 1989, the Government stated that:

130. In an observation made in 1991 on the application of the Convention in Myanmar, the Committee of Experts noted comments of 17 January 1991 by the International Confederation of Free Trade Unions (ICFTU) on the application of the Convention and the information submitted in the annexed documents. In its comments the ICFTU indicated that the practice of compulsory portering was widespread in the country and involved many thousands of workers: the majority of porters used by the army were forcibly recruited and harshly exploited; rarely, if ever, paid; inadequately fed and cared for; required to carry excessive loads; and exposed to acute physical hardship and danger. According to the documents there was no formal regulation or supervision of the conditions of work of porters, which were, in practice, determined at the discretion of local military commanders. As a result, many of them died or were killed in the course of forced labour, some were used as human shields during military actions, others were shot when trying to escape or were killed or abandoned when as a result of malnutrition or exhaustion they were no longer able to carry their load. The comprehensive documentation submitted by the ICFTU contained detailed and specific indications to back these allegations. The Committee expressed the hope that the Government would provide detailed comments on these allegations as well as full information on any measures adopted or contemplated to ensure observance of the Convention.

131. In the absence of a report from the Government, the Committee repeated its observation in 1992. At the ILC in June 1992, the Government submitted the following information:

132. In addition, a Government representative of Myanmar at the ILC in June 1992, referring to the written information provided by his Government, stressed that in his country there was no coercion with regard to the employment of workers. Comprehensive and elaborate laws effectively prevented the use of forced labour. In response to the allegations made against his Government that equated the use of porters by the armed forces of Myanmar with forced labour, he stressed that the use of porters was not the same as the use of forced labour. He stated that even if the employment of porters by the armed forces was considered to be forced labour, such porters had ceased to be employed by the military, because the Government was no longer conducting military campaigns. The Government wished to establish national unity and peace, and to remove all differences by amicable discussion rather than fighting among the different races in the country.

133. Referring to the issue of compulsory portering, the Committee of Experts, in an observation made in 1993, noted that a representation made by the ICFTU under article 24 of the ILO Constitution was declared receivable by the Governing Body and submitted to a committee set up to examine it. Consequently, the Committee of Experts suspended examination of this matter.

134. In relation to forced labour other than portering, the Committee of Experts noted in its observation made in 1993 that in his report submitted to the United Nations Commission on Human Rights at its 49th Session, February-March 1993 (UN doc. UNGA E/CN.4/1993/37 (17 February 1993)), the Special Rapporteur on the situation of human rights in Myanmar referred to the testimony of persons taken to provide labour in the construction of railroads (Aungban-Loikaw railroad) and of roads or the clearing of jungle areas for the military, that hundreds of persons were killed by the military when, as with porters, they were unable to carry loads and to continue the hard labour. The labour projects reportedly included two major railway projects, other border-development projects of the Government, particularly along the Thai-Myanmar border, and labour for the military, particularly in the areas of conflict in the Karen, Karenni, Shan and Mon areas. It was reported that the labourers died frequently as a result of constant beatings, unsanitary conditions, lack of food and lack of medical treatment, once they became sick or wounded and unable to continue work. Witnesses also provided information that some friends or relatives who returned from the work in the border development projects died afterwards as a result of the wounds and diseases contracted during their labour. The Committee requested the Government to comment on the detailed testimony reported by the UN Special Rapporteur.

(2) 1993 representation under article 24
of the ILO Constitution

(a) Allegations made by the complainant organization

135. By a communication of 25 January 1993, the ICFTU made a representation under article 24(83)  of the ILO Constitution alleging that the Government of Myanmar had failed to secure the observance of the forced labour Convention, institutionalizing the use of forced labour by military commanders through the forced recruitment and abuse of porters. According to the complainant organization, women and children as well as men were randomly rounded up by local police or the military from such public places as train stations and movie theatres or from their homes or places of work; in many cases, village headmen were responsible for filling porter quotas or providing large sums of money to the military instead. Porters were required to carry heavy loads of ammunition, food, and other supplies between army camps, generally back and forth over rugged mountains which were inaccessible to vehicles. They must often construct the camps for the military upon arrival. They were not paid for their work and allowed very little food, water, or rest. In many cases, porters were bound together in groups of 50 to 200 at night. They were denied medical care. Porters were subject to hostile fire as well as to abuse by the soldiers they served. They were routinely beaten by the soldiers and many of the women were raped repeatedly. Unarmed themselves, they were placed at the head of columns to detonate mines and booby traps as well as to spring ambushes. According to credible sources, many of these porters died as a result of mistreatment, lack of adequate food and water, and use as human mine-sweepers. While the majority of porterage cases had been linked to actions by the Myanmar army, the ICFTU also mentioned allegations by diplomats, denied by leaders of the ethnic minorities, that insurgents also forced villagers into porter service. The ICFTU referred to specific information on compulsory porterage cases that had been gathered by a variety of reputable human rights groups which had conducted fact-finding missions to the Myanmar border regions. A number of excerpts from interviews conducted with alleged victims were included in the representation.

136. Moreover, the ICFTU set out proposed conclusions concerning the inapplicability of exceptions under Article 2(2) of the Convention and of the transitional clause in Article 1(2), and the violation of Articles 1(1) and 25, as well as of many of the conditions specified in the Convention (in particular in Articles 8 to 16, 18, 23 and 24) for the "transitional period".(84) 

137. At its 255th Session (March 1993) the ILO Governing Body decided that the representation made by the ICFTU was receivable and set up a committee to examine it.

(b) The Government's observations as to the facts

138. The Government, in a written statement presented in May 1993 to the Committee set up by the Governing Body to consider the representation made by the ICFTU under article 24 of the ILO Constitution, indicated that the allegations made in certain quarters that the Myanmar authorities were using forced labour for the construction of railways, roads and bridges were false and were based on fabrications by people who wished to denigrate the image of the Myanmar authorities and by persons who did not understand the tradition and culture of the Myanmar people. In Myanmar, voluntary contribution of labour to build shrines and religious temples, roads, bridges and clearing of obstruction on pathways was a tradition which went back thousands of years. It was a common belief that the contribution of labour was a noble deed and that the merit attained from it contributed to a better personal well-being and spiritual strength. In the villages and in the border areas, members of the Tatmadaw and the local people in the region had been contributing voluntary labour towards building roads and bridges for the past four years or so. There was no coercion involved. In Myanmar history, there had never been "slave labour". Since the times of the Myanmar kings, many dams, irrigation works, lakes, etc. were built with labour contributed by all the people from the area. Accordingly, those who accused the Myanmar authorities of using forced labour patently revealed their ignorance of the Myanmar tradition and culture.

139. With regard to the allegations of forced recruitment and abuse of porters, the Government in the same statement of May 1993 repeated indications given to the ILC in June 1992.(85)  The Government added that, as a matter of fact, there were volunteer porters and professional porters who offered to work as porters on behalf of others to earn their living. So, only those who did not know the true situation would take seriously the vicious slander against the armed forces of Myanmar. The Government concluded that allegations concerning ill-treatment of porters were totally unfounded. Those allegations were completely untenable particularly in view of the high standard of professionalism and discipline of the Myanmar armed forces.(86) 

140. In an additional detailed statement provided to the same Committee in October 1993, the Government mentioned that there was not to be any doubt or question on the reputation and credibility of the persons who led the two ICFTU fact-finding missions. However, the Government pointed out that the work of these missions was carried out ex parte in Myanmar/Thai border areas and that it was done without the knowledge of the Myanmar Government. The Government added that these areas were known to have been the hideouts of terrorist groups living on smuggling and drug trafficking. These terrorists groups were constantly engaged in atrocious activities against the Myanmar Government, based on ill political motives. Therefore, persons interviewed in these areas would unequivocally provide false and fabricated information to the fact-finding missions under the influence and duress of terrorists. The Government had tried to find the persons mentioned in the ICFTU fact-finding missions' statements. However, the persons said to have been interviewed by the missions could not be identified as there had not been any statement regarding their parents' names, citizenship card number and permanent residential address. Based on the significant characteristics of Myanmar's system of nomenclature, the name of a person did not show his surname. The Government concluded that since the existence of the said person had not been established or proved, the allegations should be regarded as unfounded facts.(87)

141. In the same additional statement of October 1993, the Government indicated that three independent observation teams had been formed comprising the members of the township workers' supervisory committees and distinguished local residents. These teams visited areas mentioned by the fact-finding missions in Mon State, Kayin State and Bago Division in August 1993, and met with local administrative authorities and villagers to find out the true situation. In the interviews with the local administrative authorities (Township Law and Order Restoration Councils, Ward and Village-tract Law and Order Restoration Councils) it was found that local recruitment of porters was done only in the case of urgent necessity and was not frequent in nature. Participation in the porterage service was also voluntary. The selection and recruitment were made among those who are willing to work as porters. It was usually done in a systematic manner and the porters were sent to the end-users along with prescribed forms and documents. They had to report back to the local authorities properly after completion of their assignments. It had never been heard of any woman working as a porter. In various regions of the country, there was a large number of workers who earned wages or income for their living on casual jobs. These workers were available for any type of manual work which could provide them with reasonable wages/salary or income. This was the most important reason that they were inclined or preferred to work as porters, if and when available.(88) 

142. The Government added that since the persons mentioned in the ICFTU fact-finding missions' statements could not be traced even with the assistance of the ward and village-tract authorities, the observation teams resorted to meeting with some villagers who had been voluntarily looking for work as porters to earn some income. The information received from them was found to be contrary to that of the fact-finding missions of the ICFTU. Based on their version, porters had to carry food and supplies along the way only to the compatible limit and were never overburdened with excess loads. It was also confirmed that they were well-treated and well-provided with four items of basic needs: rice, cooking oil, beans and salt. They were allowed to rest and given enough time to sleep. They always had cordial and intimate relations with soldiers. The willingness of the porters to work for another assignment clearly indicated that there did not exist any incidence of ill treatment by soldiers towards porters.(89) 

143. The Government further stated that military offensives had been suspended since 1 April 1992 and recourse to porterage was rarely exercised. But, if and when the terrorists took advantage of the lull, defensive operations had to be made to ensure the security and well-being of the community. In such circumstances of imminent urgent necessity, porterage was to be resorted to inevitably. But the duration of porterage service rarely exceeded 30 days and porters had to serve only for a limited distance at which they had to hand over to another batch of porters who would carry food provisions and equipment to the specified destination, and their service was said to be completed at that point of destination. Here, it was to be mentioned that the loads were also shared by the armed forces personnel. Schoolteachers, pupils and officials of the administration in general were exempted and had never been used as porters in Bago Division. Translations of statements made by the individuals concerned were attached together with photographs.(90)  Finally, the Government stressed that, moreover, porters had to serve only for a certain period of time for a specific assignment and yet this would mean a considerable amount of earnings to support their families. Porters were never exposed to any danger. They, together with the provisions, had been placed in safe areas during actions with the enemies. However, there had been very few cases of accidents caused to the porters not directly related to armed clashes. In case of injury and sickness, porters enjoyed first-aid medical care, the same as soldiers. If ever there were cases of serious illness or injury, the affected person was transported immediately to the nearest hospital by any available means. In such cases of injury and death, porters and their dependants were entitled to realize compensation in accordance with provisions of the Workmen's Compensation Act of 1923 which is still in force. Porters included single and married adult males who were healthy and strong enough to work for manual/physical labour. Women were never employed for such work.(91) 

(c) The Government's observations concerning the Convention(92)

144. In reply to the alleged violation of Convention No. 29, the Government indicated, with regard to Articles 1 and 2 of the Convention, that the term "forced labour" was not applicable to Myanmar based on the fact that voluntary contribution of labour for community development efforts should not necessarily be considered as "forced labour". The Government had not failed to suppress forced labour as alleged because there was no such practice whatsoever in Myanmar. In taking an overview of whether a member country adhered to the provisions of the Convention, it was vital to take into account the cultural heritage of its member States. Only then, the soul of the Convention would be able to withstand the test of time.

145. Referring to the conditions and guarantees of Articles 8 to 16, 18, 23 and 24 of the Convention as well as to Article 25, the Government added that:

(d) The Committee's conclusions and recommendations,
approved by the Governing Body of the ILO

146. The Committee noted that the question of forced labour other than portering in Myanmar, touched upon by the Government, had been addressed by the Committee of Experts on the Application of Conventions and Recommendations in its observation of 1993 on the application of Convention No. 29 in Myanmar; but the representation made by the ICFTU in January 1993 dealt only with the use of forced labour by military commanders through the forced recruitment and abuse of porters. The Committee, set up to consider that representation, therefore limited its conclusions to this issue.(93)

147. The Committee noted that the testimony on porterage given by witnesses quoted by the complainant organization conflicted with other testimony quoted by the Government. The Committee noted that the Government had sought, with the assistance of ward and village authorities, to find the witnesses quoted by the complainant organization. It also noted the Government's allegation that these witnesses had spoken under pressure from terrorist groups. The Committee likewise noted the view of the Special Rapporteur of the United Nations Commission of Human Rights, in his report of February 1993 on the situation of human rights in Myanmar, "that serious oppression and an atmosphere of pervasive fear exist in Myanmar" (UN doc. UNGA E/CN.4/1993/37, paragraph 241). The Committee furthermore took note of the note verbale dated 26 February 1993 from the Permanent Representative of Myanmar to the United Nations Office at Geneva addressed to the Secretary-General (UN doc. UNGA E/CN.4/1993/105) which rebutted a number of statements made by the Special Rapporteur in his report. The Committee pointed out that, unlike a Commission of Inquiry, it was not in a position to organize its own fact-finding on the basis of a direct hearing of witnesses. In view of the circumstances mentioned above, the Committee abstained from using the individual testimonies referred to by the two sides in making its evaluation of the observance of the Convention by the Government.(94)

148. The Committee noted the Government's indication that the recruitment of porters was made in accordance with section 8, subsection 1(g)(n) and (o) of the Village Act (1908) and section 7, subsection 1(m) and section 9, subsection (b) of the Towns Act. Referring also to sections 11(d) and 12 of the Village Act and section 9A of the Towns Act, the Committee noted that the Village Act and the Towns Act provided for the exaction of labour and services, in particular porterage service, under the menace of a penalty from residents who had not offered themselves voluntarily, that is, the exaction of forced or compulsory labour as defined in Article 2(1) of the Convention. Consequently, amendment or repeal of the provisions referred to had been called for by the Committee of Experts for the Application of Conventions and Recommendations in comments regularly addressed to the Government since 1964.(95)

149. In the statements submitted by the Government to the Committee there were no elements which would allow a different approach. In particular, while stressing the need "to take into account the cultural heritage of member States" with regard to Articles 1 and 2 of the Convention, the Government had supplied no indications that would bring compulsory porterage within the scope of one of the exceptions provided for in Article 2, paragraph 2, of the Convention.(96)

150. Similarly, the transitional period envisaged in Article 1(2) of the Convention and subsidiarily examined in the representation by the complainant organization had not been invoked by the Government. The Committee noted that this was in line with the position taken by the Government ever since 1967 that the authorities no longer exercised the power vested in them under the relevant provisions of the Village Act and the Towns Act; according to the Government these had been established under colonial rule, did not meet the standard and the needs of the country's new social order and were obsolete and soon to be repealed. The Committee considered that this should now be done.(97)

151. Since there was no longer a question of a transitional period, the Committee abstained from considering compulsory porterage in Myanmar in the light of the conditions and guarantees which had been laid down in Articles 8 to 16, 18, 23 and 24 of the Convention for the employment of forced or compulsory labour during the transitional period.

152. Article 25 of the Convention requires that the illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and the Government is to ensure that the penalties imposed by law are really adequate and are strictly enforced. The Committee stressed that the formal repeal of the powers to impose compulsory labour under the Village Act and Towns Act thus had to be followed up in actual practice with penal prosecution of those resorting to coercion. This appeared all the more important since the blurring of the borderline between compulsory and voluntary labour, recurrent throughout the Government's statements to the Committee, was all the more likely to occur in actual recruitment by local or military officials.(98) 

153. At its 261st Session (November 1994), the Governing Body of the International Labour Office approved the report of the Committee set up to consider the representation, and, in particular, the conclusion that the exaction of labour and services, in particular porterage service, under the Village Act and the Towns Act was contrary to the Forced Labour Convention, 1930 (No. 29), ratified by the Government of Myanmar in 1955. Following the recommendations of the Committee, the Governing Body urged the Government of Myanmar to take the necessary steps to ensure that the relevant legislative texts, in particular the Village Act and the Towns Act, were brought into line with the Forced Labour Convention, 1930 (No. 29), as already requested by the Committee of Experts on the Application of Conventions and Recommendations, and to ensure that the formal repeal of the powers to impose compulsory labour be followed up in actual practice and that those resorting to coercion in the recruitment of labour be punished. The Governing Body requested the Government of Myanmar to include in the reports it supplies under article 22 of the Constitution on the application of Convention No. 29 full information on the measures taken, in accordance with these recommendations, to secure observance of the Convention, so as to enable the Committee of Experts on the Application of Conventions and Recommendations to follow the matter.(99) 

(3) Subsequent developments up to the
lodging of the complaint under article 26
of the ILO Constitution (June 1996)

154. At its February 1995 session, the Committee of Experts on the Application of Conventions and Recommendations noted that no report had been sent by the Government under article 22 of the Constitution on the application of the Convention. With regard to compulsory porterage, the Committee noted the Government's statement at the 261st Session of the Governing Body, indicating that Myanmar was undergoing a major transformation in changing from one political and economic system to another and that a basic step in this process was the amendment of laws which no longer pertain to current circumstances and situations. Recalling that in its reports on the application of the Convention, the Government indicated ever since 1967 that the authorities no longer exercised the powers vested in them under the provisions in question of the Village Act and Towns Act, which were established under colonial rule, did not meet the standard and the needs of the country's new social order and were obsolete and soon to be repealed, the Committee expressed the hope that this would now be done and that the Government would supply full details on the steps taken both as regards the formal repeal of the powers to impose compulsory labour and the necessary follow-up action, with strict punishment of those resorting to coercion in the recruitment of labour. As pointed out by the Governing Body Committee, this follow-up appeared all the more important since the blurring of the distinction between compulsory and voluntary labour, recurrent through the Government's statements to the Committee, was all the more likely to occur also in actual recruitment by local or military officials.

155. In the same observation made in February 1995, the Committee of Experts, recalling its earlier reference to detailed testimony concerning the imposition of forced labour for public works,(100) noted that the Government had addressed these matters in its written statement presented in May 1993(101) and its additional detailed statement presented in October 1993 to the Governing Body Committee set up to consider matters relating to the observance of Convention No. 29.

156. In its additional detailed statement of October 1993, the Government specified that allegations made on the use of forced labour for the railway projects in southern Shan State related to the construction of two sections, from Aungban to Pinlaung and from Pinlaung to Loikaw. The purpose of this project was to promote and develop smooth and speedy transportation in the region for economic and social development. Labour contributed to this project was purely voluntary. The Tatmadaw personnel numbering 18,637 from military units stationed in the area and 799,447 working people from 33 wards and villages of Aungban township and 46 wards and villages of Pinlaung township contributed voluntary labour. Fifteen heavy machines belonging to the Public Works and Irrigation Department and Myanmar Timber Enterprises were utilized. In addition, technicians and labourers from the Myanmar Railways (state organization) also contributed their labour. For the purely voluntary labour contributed by the people of the region, the Government disbursed a lump sum of 10 million kyat (US$1.6 million) for the Aungban-Pinlaung sector and another 10 million kyat for the Pinlaung-Loikaw sector.

157. The Government added that the entirely voluntary labour which contributed towards the construction of this railroad was witnessed by the members of the diplomatic corps in Yangon, who visited the construction site in January and May 1993. The members of the diplomatic corps met the people who contributed this labour and there were no instances where complaints were made to them.

158. The Government further considered that, under Article 2, paragraph 2(e), of the Convention, the building of the railroad could be regarded as a communal service performed by the members of the community for the members of the community in the direct interest of the community. Prior to the construction of the project, consultation in a free and spontaneous manner was made with the people of the community and the project was carried out with spontaneous enthusiasm on their part to contribute their labour.

159. In its observation of February 1995, the Committee of Experts took due note of these indications. As regards Article 2, paragraph 2(e), of the Convention, which exempts from the provisions of the Convention minor communal services, the Committee referred to paragraph 37 of its General Survey of 1979 on the Abolition of Forced Labour, where it recalled the criteria which determine the limits of this exception: the services must be minor services, i.e. relate primarily to maintenance work; and the services must be communal services, performed in the direct interest of the community and not relate to the execution of works intended to benefit a wider group. The construction of a railroad would not appear to meet either of these criteria, even where the third condition is met, namely that the members of the community or their direct representatives must have the right to be consulted in regard to the need for such services.

160. The Committee further noted that the provisions of the Village Act and the Towns Act mentioned in relation with compulsory porterage conferred sweeping powers on every headman to requisition residents to assist him in the execution of his public duties. Where such powers existed it was difficult to establish that residents performing work at the request of the authorities were doing so voluntarily. The Committee accordingly expressed the hope, with regard to public works projets as well as regarding porterage services, that the powers vested in the authorities under the Village Act and the Towns Act would now be repealed, and that the Government would supply full information on the measures taken to this effect as well as on the follow-up action mentioned in relation with compulsory porterage.(102)

161. At the Committee on the Application of Standards of the International Labour Conference (ILC) in June 1995, a representative of the Government of Myanmar indicated that in compliance with the request from the Governing Body, "to ensure that the relevant legislative texts, in particular the Village Act and the Towns Act, are brought in line with the Convention" and "to ensure that formal repeal of powers to impose compulsory labour be followed up in practice and that those resorting to coercion in the recruitment of labour be punished", the Government had started the process of amending these laws.

162. In a special paragraph of its report, the Conference Committee in 1995 called upon the Government to urgently repeal the offensive legal provisions under the Village Act and the Towns Act to bring them into line with the letter and spirit of Convention No. 29, to terminate forced labour practices on the ground, to provide for and award exemplary penalties against those exacting forced labour, and to furnish a detailed report on legislative and practical measures adopted to fall in line with Convention No. 29.

163. In an observation made in November 1995, the Committee of Experts noted that no such details had been provided by the Government. In its summary report, received 31 October 1995, the Government, referring to the provisions of Article 2(2)(b) and (d) of the Convention, concerning "normal civic obligations" and "work or service exacted in cases of emergencies", once more stated that in Myanmar it was an accepted concept that voluntary contribution of labour for community development such as construction of pagodas, monasteries, schools, bridges, roads, railroads, etc., was a kind of donation and meritorious which was good not only for the present life but also for the future life as well. So, in the Government's view, the term "forced labour" was not applicable to the provisions of section 11(d) of the Village Act and section 9 of the Towns Act. Besides, the Village Act and the Towns Act, administered by the General Administration Department were "under review to be in accordance with the present situation in Myanmar".

164. The Committee of Experts noted these indications with concern. Recalling its earlier comments,(103) it concluded that the Government's latest report persisted in blurring the distinction between compulsory and voluntary labour and contained no indication whatsoever that concrete measures had been taken to abolish the powers to impose compulsory labour either in law or in practice. The Committee asked the Government to supply full particulars to the Conference at its 83rd Session in June 1996.

165. At the Committee on the Application of Standards of the ILC in June 1996, a representative of the Government of Myanmar indicated that during the first half of 1996, a board that had been formed to monitor the progress made in reviewing the Village Act of 1908 and Towns Act of 1907 held three meetings as a result of which the draft of a new unified law had been submitted to the Laws Scrutiny Central Body for approval. With regard to the practical application of the Convention, he recalled that the use of porters was the consequence of a decades-long armed conflict between the Government and insurgent groups. However, today 15 out of 16 insurgent groups had abandoned armed struggle to join hands with the Government in national development. This encouraging situation had led to greatly diminished military operations and correspondingly the use of porters would come to an end. Indeed, concrete measures had been taken by his Government to this end. Specific instructions had been issued since 1995 to the local authorities, regional commanders and ministries concerned, prohibiting the recruitment of the local populace in carrying out national development projects such as the construction of roads, bridges and railways as well as the building of dams and embankments without proper and fair remuneration or compensation. Henceforth, members of the Myanmar armed forces would take part in these development projects to serve the interests of the people, in addition to their primary responsibility of defending the country. Thus he sincerely believed that substantial progress had been made in the observance of the provisions of Convention No. 29.(104)

166. In the ensuing discussion, the Workers' and Employers' members of the Conference Committee through their spokespersons, as well as a number of individual members of the Committee, alleged that forced labour was being exacted in Myanmar under the cruellest of conditions and on a massive scale, including in tourism-related and other construction projects to build railroads and roads and to serve as porters for the military, and that the Government had supplied no indication whatsoever that concrete measures had been taken to bring law and practice into conformity with the Convention.(105) Rather, it was becoming more and more evident, in the words of the Government member of the United States, that the Government of Myanmar "was just trying to create a smokescreen to mask the fact that, step by step, the situation in Myanmar was being reduced to a state of total lawlessness".(106)

167. The Conference Committee noted the information provided by the representative of the Government of Myanmar and the subsequent discussion. The Committee was deeply concerned by the serious situation prevailing in Myanmar over many years where systematically recourse was had to forced labour. The Committee once again firmly required the Government formally to abolish and urgently to cancel the legal provisions and to abandon all practices that were contrary to the Convention. The Committee urged the Government to prescribe truly dissuasive sanctions against all those having recourse to forced labour. The Committee hoped that the Government would, without further delay, take all necessary measures to abolish recourse to forced labour and that it would provide next year all necessary detailed information on concrete measures taken or envisaged to abolish in law and in practice the possibility of imposing compulsory labour. The Committee decided to mention this case in its report as one of persistent failure to implement Convention No. 29 since over a period of several years there had been serious and continued discrepancies in law and in fact.(107)

168. By letter dated 20 June 1996, 25 Workers' delegates to the International Labour Conference filed a complaint under article 26 of the Constitution against the Government of Myanmar, which has led to the establishment of the Commission of Inquiry.(108)

B. Examination by United Nations
bodies of the human rights situation
in Myanmar (particularly with respect
to forced labour)

169. Several United Nations bodies have addressed the human rights situation in Myanmar. On various occasions, they have invited the Government of Myanmar to take the necessary measures to bring an end to the violations that come under their purview and to ensure that the rights and guarantees of a democratic system prevail in the country.

170. The human rights situation in Myanmar was first examined by a United Nations body when the Commission on Human Rights considered the question in 1990 under the procedure established by Economic and Social Council resolution 1503.(109) At the present time, the General Assembly, the Commission on Human Rights and certain of its subsidiary bodies, the Secretary-General and the Committee on the Rights of the Child are following closely the question of forced labour in the country. This section of the report describes their work in this respect.

(1) General Assembly

171. The General Assembly considered the human rights situation in Myanmar for the first time in 1991.(110) On that occasion, it expressed its concern at the "information on the grave human rights situation" and stressed the need "for an early improvement of this situation".(111) Since then, the General Assembly has examined the situation in Myanmar at each of its annual sessions. Since 1994, the General Assembly has been urging the Government of Myanmar "to ensure full respect for human rights and fundamental freedoms",(112) "to put an end to violations of the right to life and integrity of the human being, to the practices of torture, abuse of women and forced labour and to enforced disappearances and summary executions",(113) and to "fulfil its obligations as a State Party to the Forced Labour Convention, 1930 (No. 29) ...".(114)

(2) Commission on Human Rights and
Special Rapporteurs on the situation of
human rights in Myanmar
(115)

172. Noting with concern the seriousness of the human rights situation in Myanmar, the Commission on Human Rights decided in 1992 to nominate Professor Yozo Yokota as Special Rapporteur "to establish direct contacts with the Government and with the people of Myanmar [...] with a view to examining the situation of human rights in Myanmar and following any progress made towards the transfer of power to a civilian government and the drafting of a new Constitution, the lifting of restrictions on personal freedoms and the restoration of human rights in Myanmar".(116) Judge Rajsoomer Lallah succeeded Professor Yokota in 1996. The two Special Rapporteurs have submitted a total of 11 reports on the situation of human rights in Myanmar to the General Assembly and the Commission on Human Rights, in which they have specifically addressed the issue of forced labour and forced portering.

173. In his first preliminary report dated 13 November 1992, Professor Yokota noted that the Centre for Human Rights had been provided with more than 100 well-documented cases of torture or cruel, inhuman or degrading treatment alleged to have been committed by the armed forces in the context primarily of forced recruitment and forced labour.(117) The cases of torture mentioned concerned porters being forced to carry loads they could not bear and when they were too sick or weak to continue, they were allegedly beaten with rifle butts, kicked and left by the wayside.(118)

174. In February 1993, after a visit to the country, the Special Rapporteur provided further information supporting his observations concerning the human rights situation in Myanmar.(119) He addressed the issue of forced labour and forced portering in his examination of allegations relating to the right to life(120) and protection against torture, cruel, inhuman or degrading punishment.(121) With regard to portering, the testimony received by the Special Rapporteur revealed that thousands of persons had been killed since 1988 by the military "throughout Myanmar while providing forced portering for the military". The most affected groups were the Muslims of Rakhine State (Rohingyas), the Karen, Shan and the Mon. According to the testimony that he received, the Special Rapporteur described the circumstances in which portering was allegedly carried out. Men, including children, were periodically taken forcibly from their villages to work as porters, and some of them were used to detect mines. From the information provided by more than 30 persons, the Special Rapporteur noted that portering was allegedly accompanied by systematic torture and ill-treatment.(122) Furthermore, hundreds of persons taken away by force to work as porters had allegedly disappeared.(123) The harsh climatic conditions exacerbated the effects of the ill treatment received by the porters, a large number of whom reportedly suffered from malaria, tuberculosis and other respiratory diseases, dysentery, parasitic infestations and infections of their open wounds.(124) The Special Rapporteur noted that there was no medical care for those who were ill, many of whom were continually cursed and insulted with racial or ethnic slurs.

175. In the case of forced labour other than portering, witnesses told the Special Rapporteur that persons had been forced to work on the construction of railroads, roads or clearing jungle areas in the context of railroad construction projects,(125) development projects along the Thai border and the construction of military installations, particularly in the areas of conflict in the Karen, Karenni, Shan and Mon areas. Hundreds of persons were reportedly killed when they were unable "to carry loads and to continue the hard labour".(126)

176. The Special Rapporteur also devoted a full chapter to the situation of the Muslims of Rakhine State (Rohingyas). According to the information received and reviewed by the Special Rapporteur, this group suffered non-respect for the family unit and the decrease of land resources due to arbitrary resettlement policies. He noted that the systematic repression of the Rohingyas was based upon ethnic and racial intolerance and that they were at high risk of being taken for use as forced porters or forced labourers.(127) Finally, large volumes of direct testimony received by the Special Rapporteur, as well as other well-documented evidence, indicated the use of a systematic pattern of torture (including rape), cruel, inhuman and degrading treatment, forced disappearance and arbitrary execution of Muslim and other Rakhine ethnic minorities in Rakhine State by the Myanmar authorities.(128)

177. In view of the evidence compiled by the Special Rapporteur, he concluded that physical integrity violations in Myanmar affected three categories of persons, one of which included porters requisitioned by force and persons compelled to carry out forced labour.(129)

178. Among the recommendations made by the Special Rapporteur, one was directed specifically at forced labour and forced portering and invited the Government to take "measures to comply with its obligations under ILO Convention No. 29 by eradicating the practice of forced portering and other forced labour which has provoked systematic torture, cruel, inhuman and degrading treatment or punishment, disappearances and mass arbitrary executions."(130) The Special Rapporteur added that "given the magnitude of the abuses, official condemnation should be made by the Government of all acts by authorities involving human rights violations. Such acts, including all acts of intimidation, threat or reprisal, should not benefit from the present system of complete denial and impunity of the Government."(131)

179. Since then, the Special Rapporteurs have had to note with regret that violations of human rights were committed consistently and on a wide scale by the authorities of Myanmar against innocent civilians under forms which included forced labour and forced portering.(132) Indeed, since October 1994, the Special Rapporteurs have devoted complete sections of their reports to this practice and have included examples to support their conclusions and recommendations in this respect.

180. In his interim report submitted to the General Assembly in October 1994,(133) the Special Rapporteur indicated that allegations had also been made that elderly persons, women and children had been taken as army porters and were often reportedly used as human shields in military operations.(134) In addition to portering, civilian labour was allegedly forced to carry out other work for the army. Inhabitants of villages near army camps were reportedly obliged to supply daily workforces to assist with the construction of army barracks, fences, land clearance, wood-cutting operations, agricultural projects and other activities in direct support of army camps.(135)

181. The Special Rapporteur also referred to certain large development projects initiated by the Government of Myanmar, for which civilians had reportedly been forced to contribute uncompensated labour. These projects included the building of hospitals, roads, railways, gas pipelines, bridges and fisheries. Inhabitants of villages in these areas were reportedly obliged to frequently contribute their labour and other resources.(136) The Special Rapporteur received many reports of considerable detail alleging violations of human rights on a massive scale in connection with the construction of a railway commenced in 1993 between the city of Ye (Mon State) and Tavoy (Tanintharyi Division).(137) Furthermore, the Special Rapporteur was informed of the use of other forms of forced labour in connection with the construction of a road between Bokpyin and Lenya in Tanintharyi Division, an international airport at Pathein and a new military airfield in Labutta Township in Ayeyarwady Division and the restoration of tourist sites in Mandalay.(138) Finally, civilians reportedly had to serve 24-hour guard duties without compensation along roads and railways in regions where insurgencies were taking place. They also allegedly had to sweep roads for mines by walking or riding carts in front of military columns.(139)

182. In his interim report of October 1995,(140) preceded by the report submitted to the Commission in January 1995,(141) the Special Rapporteur requested the Government to respond to the following allegations that: the Government made extensive use of various forms of forced, unpaid labour for a variety of development projects aimed at building the infrastructure of the country;(142) that with a view to preparing "Visit Myanmar Year (1996)", the Government made use of forced labour to restore tourist sites and to upgrade the infrastructure; and that an increase in forced portering for the military had occurred in connection with the conflicts between the Myanmar army and insurgent groups in Kayin State.

183. In his report submitted to the Commission on Human Rights in February 1996,(143) the Special Rapporteur indicated that during his visit to Myanmar in October 1995 he had received the texts of two secret directives which gave orders to bring to an end the use of labour without payment for irrigation and development projects. However, in view of the complaints received from reliable sources, it seemed that these directives were not implemented and that men, women and children were still being used as forced labour for the construction of railways, roads and bridges. The workers were reportedly not paid for their work and were allowed only a minimum of food and rest.(144) The Special Rapporteur therefore concluded that the detailed reports, photographs, video recordings and a variety of physical evidence brought to his knowledge indicated that the practices of forced labour, forced portering, torture and arbitrary killings were still widespread, particularly in the context of development projects and counter-insurgency operations in ethnic minority regions. Many of the victims of such acts appeared to belong to ethnic national populations and were composed of villagers, women, daily wage-earners and other peaceful civilians who did not have enough money to avoid mistreatment by paying bribes.(145) In his recommendations, the Special Rapporteur emphasized that the Government of Myanmar should comply with its obligations under Convention No. 29 prohibiting the practice of forced portering and forced labour. In this connection, he requested the Government to urgently take the appropriate measures to repeal the offensive legal provisions in the laws authorizing the use of this practice so as to bring it to an end.(146)

184. Since October 1996, the Special Rapporteur has regretted the absence of cooperation by the Government.(147) In his first interim report dated 8 October 1996, Judge Lallah, like his predecessor, expressed his concern at the large number of cases of alleged torture and other ill-treatment attributable to the Myanmar armed forces. It was reported that these practices were regularly employed against civilians living in insurgency areas, against porters serving the army and against workers in work sites where the authorities make use of forced labour.(148)

185. With regard to the issue of forced labour itself, the Special Rapporteur stated that he continued to receive numerous reports from a wide variety of sources indicating that the practice of forced labour remained widespread.(149) Civilians reportedly continued to be forced to work on development projects, including the building of roads, railways, bridges and gas pipelines. People living near the projects were said to be forced to work under threat of reprisals. Elderly persons and children had reportedly been seen working on those sites.(150)

186. The Special Rapporteur also noted that the forced recruitment of civilians for the purpose of portering was still practised in Myanmar.(151) The treatment of porters was reported to be brutal.(152) Porters had to cross mountainous terrain carrying heavy loads and those who attempted to escape were regularly shot.(153)

187. In light of the information brought to his knowledge, the Special Rapporteur therefore urged the Government of Myanmar "to comply with its obligations under ILO Convention No. 29, prohibiting the practice of forced labour and forced portering."(154) The Government was also requested to "take the necessary steps to bring the acts of soldiers, including privates and officers, in line with accepted international human rights and humanitarian standards so as to prevent arbitrary killings, rapes, and confiscation of property, or forcing persons into acts of labour, portering, relocation or otherwise treating persons without respect to their dignity as human beings. When local villagers are hired for porterage and other works, adequate wages should be paid. The nature of the work should be reasonable and in accordance with established international labour standards."(155) Finally, "given the magnitude of the abuses, the Government should subject all officials committing human rights abuses and violations to strict disciplinary control and punishment and put an end to the culture of impunity that prevails at present in the public and military sectors."(156) The Special Rapporteur also encouraged the Government to cooperate with the ILO to that end.(157)

188. Before submitting his report to the Commission in February 1997,(158) the Special Rapporteur visited Thailand in December 1996 to assess the situation of displaced persons from Myanmar living in refugee camps on the border. In his report, the Special Rapporteur identified forced labour as one of the causes of people leaving their homes.(159)

189. The Special Rapporteur provided new information on forced labour in his interim report dated 16 October 1997.(160) Recourse to forced labour was reported in all parts of Myanmar, including those where a cease fire had been agreed upon. In the case of military offensives, the Special Rapporteur indicated that an estimated 30,000 porters had reportedly been recruited for the offensives against the Karen National Union (KNU) launched in the dry season of 1997.(161) A substantial increase in the presence of the Myanmar army in the border regions was reported, leading to an increase in non-frontline forced labour for the military, such as portering and courier duties, building, maintaining and guarding military roads and bridges, sweeping roads for mines, and building and servicing military camps and farms.(162) Another form of forced labour which had been reported was work on commercial projects for the army, such as rice farms, fish ponds and tree-planting operations, which the local farmers had to build up and maintain.(163) Forced labour continues to be used for infrastructure and development work.(164)

190. In his report to the Commission on Human Rights in January 1998,(165) the Special Rapporteur specifically addressed the issue of women victims of forced labour. In this respect, he noted that increasing numbers of women, including young girls and the elderly, had reportedly been forced to work, without receiving remuneration or being provided with food, on infrastructure projects and to act as porters in war zones, even when they were pregnant or nursing their infants.(166) The Special Rapporteur added that women porters were more vulnerable than men, since they had been reported to have been used not only as porters, but also as human shields and had been sexually abused by soldiers.(167)

191. In the light of the facts described by the Special Rapporteurs, the Commission on Human Rights has adopted resolutions since 1992 in which it had expressed its growing concern at the extreme seriousness of the persistent violations of human rights in Myanmar, and particularly those relating to the practices of torture and forced labour, including portering for the army.(168)

192. Since 1993, the Commission on Human Rights has been urging the Government "to restore full respect for human rights and fundamental freedoms " and "to put an end to violations of the right to life and integrity of the human being, to the practices of torture, abuse of women and forced labour and to enforced disappearance and summary executions";(169) furthermore, it appealed to the Government "to fulfil its obligations as a State party to the Forced Labour Convention, 1930 (No. 29)".(170)  Since 1994, it has been reminding the Government "of its obligation to put an end to the impunity of perpetrators of violations of human rights, including members of the military, and its responsibility to investigate alleged cases of human rights violations committed by its agents on its territory, to bring them to justice, prosecute them and punish those found guilty, in all circumstances".(171) In 1997, it expressed its deep concern at "violations of the rights of children in contravention of the Convention on the Rights of the Child, in particular by the lack of conformity of the existing legal framework with that Convention, by systematic recruitment of children into forced labour, and by discrimination against children belonging to ethnic and religious minority groups".(172) In 1998, the Commission on Human Rights expressed its deep concern at "the widespread use of forced labour, including work on infrastructure projects and as porters for the army".(173) It therefore decided to extend the mandate of the Special Rapporteur for a further year and to continue its consideration of the question at its Fifty-fifth Session.(174)

(3) Secretary-General

193. Requested by the General Assembly to assist in the implementation of the resolution on the situation of human rights in Myanmar,(175) since 1993 the Secretary-General has offered his good offices in assisting the Government of Myanmar to respond to the concerns of other member States of the United Nations in this respect.(176) In the context of this mandate, representatives of the Secretary-General visited Myanmar on six occasions(177) since, for the adequate discharge of his mandate, the Secretary-General holds the considered view that it is essential for his representatives to meet with the highest governmental authorities as well as with leaders of other relevant political forces.(178) Despite the dialogue which was initiated, which he welcomed, the Secretary-General has been expressing his regret since 1996 that no progress can be reported in the areas on which the General Assembly and the Human Rights Commission have repeatedly expressed their concern.(179)

(4) Other United Nations bodies

194. The Committee on the Rights of the Child, established under Article 43 of the Convention on the Rights of the Child, to which Myanmar adhered on 15 July 1997, examined the report supplied by Myanmar in 1997 in accordance with its obligations under the Convention. The Committee expressed concern at the reports from various sources concerning cases of abuse and violence perpetrated against children, particularly cases of rape and of children systematically forced into labour, including as porters.(180) It noted with concern the forced recruitment of child-soldiers(181) and the insufficient measures taken to provide physical and psychological recovery and social reintegration to children victims of any form of neglect, abuse and/or exploitation.(182) The Committee therefore recommended the Government to take all necessary measures to remedy the situation and bring it into conformity with the provisions of the Convention and in particular that the army should refrain from recruiting under-aged children and that forced recruitment should in all cases be abolished.(183)

195. Finally, other bodies of the Commission on Human Rights have been dealing at one time or another with questions relating to forced labour in Myanmar. For instance, in 1993 the Special Rapporteur on the implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief examined in detail allegations of acts of discrimination against Muslims in Rakhine State (Rohingyas) related to forced labour. On that occasion, the Special Rapporteur expressed the opinion that these cases merited an investigation that would identify the persons, locations and situations concerned, which has not been carried out.(184) In 1994, the Special Rapporteur noted that the members of the Buddhist, Christian and Muslim communities continued to be persecuted.(185)

196. The Special Rapporteurs on torture and other cruel, inhuman or degrading treatment or punishment have dealt since 1992 with allegations of torture perpetrated by the military against persons compelled to work or perform portering.(186)

197. Finally, in 1994, the Special Rapporteur on extrajudicial, summary or arbitrary executions, expressed concern at the allegations brought to his knowledge reporting the arbitrary and excessive use of force by members of the security forces, who seemed to enjoy virtual impunity.(187)

 


78.  The full text of the supplementary evidence submitted is reproduced as Appendix I to this report.

79.  See paras. 150 and 151 below.

80.  The text of the Government's observations on the initial complaint and supplementary evidence submitted is reproduced as Appendix II to the present report, unabridged except for two confidential annexes ("Annexures" II and VII) which have been omitted.

81.  Moreover, the Government stated under Art. 2 that: "So far there had been no necessity to take advantage of the exemptions provided under para. 2 of this Article. However, it will be duly reported when necessity arises."

82.  The full wording of the relevant provisions of the Village Act and the Towns Act is given in paras. 238-240 below.

83.  Art. 24 of the ILO Constitution states that: "In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit."

84.  See paras. 15 to 19 of the report of the Committee set up to consider the representation made by the ICFTU under art. 24 of the ILO Constitution alleging non-observance by Myanmar of the Forced Labour Convention, 1930 (No. 29) (doc. GB.261/13/7, Geneva, Nov. 1994).

85.  See para. 131 above. The substantially identical indications given by the Government to the Committee set up to consider the representation made by the ICFTU under art. 24 of the ILO Constitution alleging non-observance by Myanmar of the Forced Labour Convention, 1930 (No. 29) are reflected in paras. 22 to 25 of that Committee's report (doc. GB.261/13/7, Geneva, Nov. 1994).

86.  See paras. 26 and 27 of the report of the Committee set up to consider the representation made by the ICFTU under art. 24 of the ILO Constitution alleging non-observance by Myanmar of the Forced Labour Convention, 1930 (No. 29) (doc. GB.261/13/7, Geneva, Nov. 1994).

87.  ibid., paras. 28 and 29.

88.  ibid., paras. 30 to 32.

89.  ibid., para. 33.

90.  ibid., paras. 37 to 39.

91.  ibid.

92.  See, ibid., paras. 40 and 41.

93.  ibid., para. 42.

94.  ibid., para. 43.

95.  ibid., paras. 44 to 48.

96.  ibid., para. 49.

97.  ibid., para. 50.

98.  ibid., para. 52.

99.  ibid., para. 53, and Governing Body, 261st Session, Geneva, Nov. 1994, Record of decisions (doc. GB.261/205), para. 61.

100.  See para. 134 above.

101.  See para. 138 above.

102.  See para. 154 above.

103.  ibid.

104.  ILC, 83rd Session, Geneva, 1986, Provisional Record, p. 14/56.

105.  ibid., pp. 14/56 to 14/58.

106.  ibid., p. 14/58.

107.  ibid., pp. 14/58 and 14/46.

108.  See para. 1 above.

109.  However, the human rights situation in Myanmar had already been considered by the Sub-Commission on the Prevention of Discrimination and Protection of Minorities in 1988 and 1989 and gave rise to a resolution by the Commission on Human Rights in 1989: resolution 1989/112 of 8 Mar. 1989.

110.  UN doc. UNGA A/RES/46/132 of 17 Dec. 1991.

111.  ibid., para. 2. The General Assembly reiterated its concern in 1992 and 1993: UN doc. UNGA A/RES/47/144 of 18 Dec. 1992 and UN doc. UNGA A/RES/48/150 of 20 Dec. 1993.

112.  UN doc. UNGA A/RES/49/197 of 23 Dec. 1994.

113.  ibid., para. 10.

114.  ibid., para. 12. The resolutions adopted in 1995, 1996 and 1997 are to the same effect: UN doc. UNGA A/RES/50/194 of 22 Dec. 1995; UN doc. UNGA A/RES/51/117 of 12 Dec. 1996; UN doc. UNGA A/RES/52/137 of 12 Dec. 1997.

115.  Consideration of the question of forced labour by other subsidiary bodies of the Commission on Human Rights, namely the Special Rapporteurs on the implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief, on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and on Extra-judicial, Summary or Arbitrary Executions is described below in section (iv) Other United Nations bodies.

116.  Commission on Human Rights, resolution 1992/58 of 3 Mar. 1992. The decision of the Commission was approved by the Economic and Social Council on 20 July 1992 in its resolution 1992/235. The Economic and Social Council renewed its approval in 1993 (resolution 1993/278 of 28 July 1993), 1994 (resolution 1994/269 of 25 July 1994), 1995 (resolution 1995/283 of 25 July 1995), 1996 (resolution 1996/285 of 24 July 1996) and 1997 (resolution 1997/272 of 22 July 1997).

117.  Preliminary report prepared by Professor Yozo Yokota (Japan), Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar, in accordance with paragraph 3 of Commission resolution 1992/58 of 3 Mar. 1992 and Economic and Social Council decision 1992/235 of 20 July 1992, UN doc. UNGA A/47/651 of 13 Nov. 1992. The preponderance of cases concerned members of the Muslim population of northern Rakhine State, as well as those belonging to the Karen community: ibid., para. 46 in fine.

118.  ibid., particularly paras. 46 to 52. The Special Rapporteur has referred to the case of soldiers from a military unit referred to by name which allegedly went through a village in Rakhine State recruiting people for forced labour (para. 48).

119.  Report on the situation of human rights in Myanmar, prepared by Mr. Yozo Yokota, Special Rapporteur of the Commission on Human Rights, in accordance with Commission resolution 1992/58, UN doc. CES E/CN.4/1993/37 of 17 Feb. 1993. The Special Rapporteur subsequently visited the country on three occasions, namely from 9 to 16 Nov. 1993, from 7 to 16 Nov. 1994 and from 8 to 16 Nov. 1995.

120.  ibid., paras. 79-85.

121.  ibid., paras. 101-104.

122.  These acts are alleged to have occurred in particular in the Kayah, Kayin, Mon, Rakhine and Shan States: ibid., paras. 101-103 and 231-234.

123.  ibid., para. 232.

124.  ibid., para. 104.

125.  In this respect, reference was made to the Aungban-Loikaw railroad.

126.  Report on the situation of human rights in Myanmar, op. cit., note 119, paras. 85 and 234.

127.  ibid., paras. 135 and 235-236.

128.  ibid., para. 136.

129.  ibid., para. 228. The other categories included citizens wishing to participate freely in the political process and the transition to the democratically elected civilian government as well as ethnic minorities, against whom oppressive measures were imposed.

130.  ibid., para. 242(f).

131.  ibid., para. 242(k).

132.  See, for example: interim report prepared by Mr. Yozo Yokota, Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar, in accordance with para. 16 of the Commission on Human Rights resolution 1993/73 of 10 Mar. 1993 and Economic and Social Council Decision 1993/278 of 28 July 1993, UN doc. UNGA A/48/578 of 16 Nov. 1993, para. 35; Report on the situation of human rights in Myanmar, prepared by Mr. Yozo Yokota, Special Rapporteur, in accordance with Commission resolution 1993/73, UN doc. CES E/CN.4/1994/57 of 16 Feb. 1994, para. 55.

133.  Interim report prepared by Mr. Yozo Yokota, Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar in accordance with paragraph 20 of Commission on Human Rights resolution 1994/85 of 9 Mar. 1994 and Economic and Social Council decision 1994/269 of 25 July 1994, UN doc. UNGA A/49/594 of 28 Oct. 1994 and UN doc. UNGA A/49/594/Add.1 of 9 Nov. 1994.

134.  ibid., para. 19.

135.  ibid., para. 20.

136.  ibid., para. 21.

137.  According to reports received, "each family from the villages along the line and also from surrounding areas is obliged to supply one worker for 15 days at a time in rotating shifts. Almost all the civilian families in Ye township, Thanbyuzayat township and Mudon township of Mon State, as well as Yebyu township, Dawei (Tavoy) township, Launglon township and Thayetchaung township of Tanintharyi Division, are said to have been forced to contribute labour for the railway's construction. The workers are reportedly required to bring their own food, provide their own shelter, ensure their own health and medical needs, use their own tools and, in some cases, also supply materials for the construction of the railway. Allegations have also been made that the military supervising the construction of the railway demands money for the use of bulldozers available at construction sites; the fuel needed for use of the bulldozers is also said to be sold by the military. [...] Reports received consistently estimate that over 100,000 persons have had to contribute their labour for the railway project without any compensation. Elderly persons, children and pregnant women are also reported to have been seen as labourers along the railway. Several persons are also reported to have died from illness and accidents caused by poor conditions at construction sites. [...] The land along the railway's route is said to have been confiscated from its owners without compensation." ibid., para. 22.

138.  ibid., para. 23.

139.  ibid., para. 24.

140.  Interim report prepared by Mr. Yozo Yokota, Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar, in accordance with Commission on Human Rights resolution 1995/72 of 8 Mar. 1995, and Economic and Social Council decision 1995/283 of 25 July 1995, UN doc. UNGA A/50/568 of 16 Oct. 1995.

141.  Report on the situation of human rights in Myanmar, prepared by the Special Rapporteur, Mr. Yozo Yokota, in accordance with Commission resolution 1994/85, UN doc. CES E/CN.4/1995/65 of 12 Jan. 1995.

142.  The railway lines which were under construction in 1995 and for which the authorities reportedly made use of forced labour include the Pakokku-Gangaw-Kalaymyo-Tamu line and the Ye-Dawei (Tavoy) line. People were allegedly not only forced to contribute their labour but also the necessary materials.

143.  Report on the situation of human rights in Myanmar, prepared by Mr. Yozo Yokota, Special Rapporteur of the Commission on Human Rights, in accordance with Commission resolution 1995/72, UN doc. CES E/CN.4/1996/65 of 5 Feb. 1996.

144.  ibid., paras. 141-142. Various sources reported an especially intensive use of forced labour in relation to railway construction projects. More than 50,000 people were reportedly being forced to work on a new section of the railway from Ye to Kanbauk. Forced labour was also allegedly being used to repair the highway in Bago township, with the work reportedly involving carrying stones from a quarry, levelling work and the laying of tar, with each family having to pay 50 kyat every two weeks as their contribution to the construction of this highway.

145.  ibid., para. 173.

146.  ibid., para. 180.

147.  Interim report on the situation of human rights in Myanmar, prepared by Judge Rajsoomer Lallah, Special Rapporteur of the Commission on Human Rights, in accordance with resolution 1996/80 of 23 Apr. 1996, UN doc. UNGA A/51/466 of 8 Oct. 1996.

148.  ibid., particularly in paras. 45 and 51.

149.  ibid., paras. 126-145.

150.  ibid. The Special Rapporteur cited some illustrations, namely: the people of Ahphyauk town in Ayeyarwady Division were reported to have been made to work on an irrigation canal with a length of about 25 miles. Those who refused were fined 1,300 kyat or were prosecuted under section 12 of the Village Act and, if found guilty, sentenced to one month's imprisonment (para. 133); a man from Hinthada in Ayeyarwady Division was reportedly beaten because, being too old, he had refused to contribute labour to build an embankment (para. 134); in May 1995, about 200 villagers were reportedly ordered by the military authorities to go to Heinze Island for two weeks, where they had to clear ground, construct a helipad and build various barracks. The workers received no wages and were forced to pay for the petrol used in the boat which took them to the island. Villagers who refused to go were fined or arrested and sent to conflict areas to serve as porters for the military (para. 135); in Aug. and Sep. 1995, a Mon farmer from Yebyu township was allegedly forced to build army buildings near the pipeline at Ohnbinkwin and in Kadaik harbour. He was also reportedly forced to cut trees and clear bushes for the road (para. 136); the authorities reportedly used forced labour to build a Buddhist museum in the town of Sittway (para. 137); villagers from Pathein, Ayeyarwady Division, were allegedly forced to work on the construction of a new road from Nga Saw to Talakwa (para. 138); in Mar. 1996, villagers were allegedly forced to cut trees and carry timber to the sawmill in Kyet Paung (Hlaingbwe township, Kayin State), and some villagers also had to work at the sawmill (para. 139).

151.  ibid. The reports received by the Special Rapporteur showed that porters could be divided into several categories, i.e. operations porters, taken for the duration of a specific military operation; permanent or shift porters, provided by villages on written military orders who work a set length of time and must be replaced by their village; emergency porters, demanded from villages for special tasks such as monthly rice delivery to troops; porters of opportunity -- often farmers met on the road and kept on in case they are needed. Porters are also reported to include civilians taken in urban or semi-urban areas as a sanction by the authorities, convict porters and paid porters replacing more affluent villagers who are able to pay for their services (para. 140).

152.  ibid.

153.  ibid. The Special Rapporteur indicated various cases of forced portering: on 10 Dec. 1995, a group of soldiers reportedly arrived at Meh Bleh Wah Kee in Myawady township in Kayin State, arrested ten persons who were forced to carry very heavy army equipment across the Dawna mountains to Ber Kho (para. 143); a farmer from Mon State was reportedly caught by the military, tied up and forced to carry army material for 17 days (para. 144); in Mar. 1996, a fisherman from Taung Kun in Ye township (Mon State) was allegedly forced to serve as a porter for the army for 15 days (para. 145). The Special Rapporteur noted that porters are reportedly civilians forced to do work which does not fall under any of the exceptions envisaged in the Forced Labour Convention, 1930 (No. 29).

154.  ibid., para. 153(14).

155.  ibid., para. 153(15).

156.  ibid., para. 153(17).

157.  ibid., para. 153(14). The Special Rapporteur reiterated his conclusions in subsequent reports.

158.  Report of the Special Rapporteur, Mr. Rajsoomer Lallah, submitted in accordance with the Commission on Human Rights resolution 1996/80, UN doc. CES E/CN.4/1997/64 of 6 Feb. 1997.

159.  ibid., para. 80.

160.  Interim report on the situation of human rights in Myanmar, prepared by Mr. Rajsoomer Lallah, Special Rapporteur of the Commission on Human Rights, in accordance with General Assembly resolution 51/117 of 12 Dec. 1996 and Economic and Social Council decision 1997/272 of 22 July 1997, UN doc. UNGA A/52/484 of 16 Oct. 1997. See in particular paras. 50-68.

161.  ibid., para. 57. Porters were also reported to have accompanied the offensives in Shan and Kayah States in 1996 and 1997. As a result of the ceasefires with the Kachin (1994) and a number of other groups, and the surrender of Khun Sa's Mong Tai army in 1996, there had reportedly been a reduction in the number of actual front line operations. The Special Rapporteur reviewed other cases brought to his knowledge, including one on 28 June 1997, when 17 villagers were reportedly seized by troops at the village of Ho Thi, in Laikha township and were forced to carry ammunition and other military equipment (para. 58).

162.  ibid., para. 59. In this respect, the Special Rapporteur received reports about forced labour in Thabaung township, Ayeyarwady Division, according to which it seemed that all the villages in the community had to construct at their own expense temporary camps, barracks, stores, houses and furniture. They also had to construct a road for which each family had to provide soil. On 4 July 1997, villagers who had been forced to relocate in Kunhing (Shan State) in 1997, were reportedly forced to cut bamboo, build four layers of fences around the military camp and dig trenches between the layers of fences (paras. 60 and 61).

163.  ibid., para. 62.

164.  ibid., para. 63. The Special Rapporteur summarized the information contained in reports received by him as follows: in Oct. 1996, the authorities used forced labour to build a road from Ywamon to Zeebyugon in Natmauk township. People from more than 40 villages in Natmauk were made to take part in the project. Households that could not supply labourers were made to pay. Thirteen people, including two women, were reported to have been arrested on 15 Jan. 1997 because they refused to take part in a forced labour project to build a road from Pathein to Talakwa to Morton Point in Ayeyarwady Division. Each household in village-tracts had to provide one-and-a-half baskets of rock. Those households which could not do so had to pay 2,000 kyat to the Village-tract Law and Order Restoration Council (paras. 64 and 65). The farmers of Wuntho township in Sagaing Division were reported to have had to provide forced labour to build a stupa in Kyingyi village (para. 66). Forced contributions were required for the construction of roads (Kanthagyi-Kyaungdawya, Salin, Natyegan) and a bridge (Man Bridge) in Pwinbyu township, Magway Division (para. 67). Forced labour was also reportedly used in Kawhmu township (Yangon Division) in Dec. 1996 for the construction of a road to Htamanaing village (para. 68). The workers were regularly subjected to ill treatment.

165.  Report of the Special Rapporteur, Mr. Rajsoomer Lallah, submitted in accordance with Commission on Human Rights resolution 1997/64, UN doc. CES E/CN.4/1998/70 of 15 Jan. 1998.

166.  ibid., para. 65.

167.  ibid., para. 66. In this connection, the Special Rapporteur referred to the following case: on 8 June 1997, troops from Mongpan (eastern Shan State) allegedly arrested 17 villagers (ten men and seven women) at Ter Hung village and forced them to carry military supplies from Kengtung to Mongpan. When they arrived, the men were released while the women were detained all night and were reportedly gang-raped before being released the next morning.

168.  Commission on Human Rights resolution 1993/73 of 10 Mar. 1993, preamble (7); Commission on Human Rights resolution 1994/85 of 9 Mar. 1994, preamble (6); Commission on Human Rights resolution 1995/72 of 8 Mar. 1995, preamble (8); Commission on Human Rights resolution 1996/80 of 23 Apr. 1996, preamble (5) and (7). In 1997, the Commission on Human Rights expressed its deep concern "at the continuing violations of human rights in Myanmar, as reported by the Special Rapporteur, including [...] forced labour by children as well as adults, including portering for the military": Commission on Human Rights resolution 1997/64, para. 2(a).

169.  Resolution 1993/73, para. 6; resolution 1994/85, para. 7; resolution 1995/72, para. 11; resolution 1996/80, para. 12.

170.  Resolution 1993/73, para. 11; resolution 1994/85, para. 13; resolution 1995/72, para. 16; resolution 1996/80, para. 14; resolution 1997/64, para. 3(g) (in this resolution, the Commission explicitly calls upon the Government to cooperate more closely with the ILO, "in particular with the Commission of Inquiry appointed in accordance with art. 26 of the Constitution of the International Labour Organization"); and resolution 1998/63 of 21 Apr. 1998, para. 4(j).

171.  Resolution 1994/85, para. 8; resolution 1995/72, para. 12; resolution 1996/80, para. 12; resolution 1997/64, para. 3(g); resolution 1998/63 of 21 Apr. 1998, para. 4(l).

172.  Resolution 1997/64, para. 2(g). In 1998, it expressed its deep concern at continuing violations of the rights of children by recruitment of children into forced labour programmes and into the armed forces: resolution 1998/63, para. 3(d).

173.  Commission on Human Rights resolution 1998/63, para. 3(a).

174.  Resolution 1998/63, para. 5(a) and (d).

175.  UN doc. UNGA A/RES/48/150 of 23 Dec. 1993, para. 15.

176.  As the Special Rapporteur on Myanmar already had the mandate to "establish direct contacts with the Government and people of Myanmar, with a view to examining the situation of human rights in Myanmar" and to report to the General Assembly, the Secretary-General therefore interpreted his role "as being not one of fact-finding, but rather one of good offices in assisting the Government of Myanmar to respond to the concerns of other member States": Report of the Secretary-General on the situation of human rights in Myanmar, UN doc. UNGA A/49/716 of 25 Nov. 1994, para. 2.

177.  They were not able to visit the country in 1996: Report of the Secretary-General on the situation of human rights in Myanmar, UN doc. CES E/CN.4/1996/157 of 17 Apr. 1996 and Report of the Secretary-General to the General Assembly on the situation of human rights in Myanmar, UN doc. UNGA A/51/660 of 8 Nov. 1996.

178.  See in particular report to the General Assembly, ibid., para. 13.

179.  Report to the Commission on Human Rights, op. cit., note 177, para. 15; report to the General Assembly, ibid., para. 13; report to the Commission on Human Rights on the situation of human rights in Myanmar, UN doc. CES E/CN.4/1997/129 of 27 Mar. 1997, para. 16; report to the General Assembly on the situation of human rights in Myanmar, UN doc. UNGA A/52/587 of 10 Nov. 1997, para. 14; and report to the Commission on Human Rights on the situation of human rights in Myanmar, UN doc. CES E/CN.4/1998/163 of 9 Apr. 1998, para. 16.

180.  Concluding observations of the Committee on the Rights of the Child: Myanmar, UN doc. CRC/C/15/Add.69 of 24 Jan. 1997.

181.  ibid., paras. 21 and 22.

182.  ibid., para. 25.

183.  ibid., paras. 42 and 45.

184.  Report of the Special Rapporteur on the Implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, UN doc. CES E/CN.4/1993/62 of 6 Jan. 1993, paras. 45-47.

185.  Report of the Special Rapporteur, Mr. Abdelfattah Amor, on the Implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, UN doc. CES E/CN.4/1995/91 of 22 Dec. 1994, p. 64.

186.  Report of the Special Rapporteur, Mr. P. Kooijmans, on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN doc. CES E/CN.4/1993/26 of 15 Dec. 1992, paras. 335-350; Report of the Special Rapporteur, Mr. Nigel S. Rodley on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN doc. CES E/CN.4/1994/31 of 6 Jan. 1994, paras. 399-403; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN doc. CES E/CN.4/1995/34 of 12 Jan. 1995, paras. 492-500.

187.  Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, UN doc. CES E/CN.4/1995/61 of 14 Dec. 1994, para. 230.

Part IV

Examination of the case by the Commission

 


9. Context of general international law
and requirements of the Forced Labour
Convention, 1930 (No. 29)

A. General international law, including slavery,
forced labour and other slavery-like practices

198. In international law, the prohibition of recourse to forced labour has its origin in the efforts made by the international community to eradicate slavery, its institutions and similar practices, since forced labour is considered to be one of these slavery-like practices.(188) Many conventions and international treaties prohibit recourse to slavery, both in times of peace and during periods of armed conflict. Although certain instruments, and particularly those adopted at the beginning of the nineteenth century, define slavery in a restrictive manner, the prohibition of slavery must now be understood as covering all contemporary manifestations of this practice.

199. The first initiatives to abolish the slave trade date from 1815 when the States participating in the Congress of Vienna expressed their desire, in the name of the universal principles of morality and humanity, to put an end to a scourge which had desolated Africa, degraded Europe and afflicted humanity for so long.(189) Following the Congress of Vienna, national laws were adopted and bilateral treaties concluded which gave effect to the commitment to prohibit the slave trade and enforce its prohibition with penal sanctions.(190) Furthermore, multilateral instruments were signed under the auspices of the Great Powers for the purposes of prohibiting the practice and coordinating action to suppress it. These included the Treaty of London of 20 December 1841 for the Suppression of the African Slave Trade,(191) the General Act of the Berlin Conference of 26 February 1885 prohibiting the slave trade in the Congo Basin,(192) the General Act of the Brussels Anti-Slavery Conference, held from 18 November 1889 to 2 July 1890 to bring about the suppression of the slave trade,(193) the 1904 International Agreement as well as the 1910 International Convention for the Suppression of the White Slave Traffic(194) and the 1921 International Convention for the Suppression of Traffic in Women and Children.(195)

200. After the First World War, slavery and slavery-like practices were among the first issues addressed by the League of Nations. The work of this organization was highly significant since, under its impetus, nearly all States adopted legislation to prevent slavery internally and the importation of slaves. Moreover, the Slavery Convention, concluded on 25 September 1926,(196) specified for the first time the components which constitute slavery, by defining it as "the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised".(197) Under the terms of the 1926 Convention, the High Contracting Parties undertake to prevent and suppress the slave trade, to bring about progressively and as soon as possible the complete abolition of slavery in all its forms and to adopt the necessary measures in order to ensure that breaches of laws and regulations enacted with a view to giving effect to the purposes of the Convention are punished by severe penalties.(198) Recognizing the grave consequences that recourse to forced labour may have, the Contracting Parties undertake "to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery".(199) The Convention endeavours to limit as far as possible the circumstances under which compulsory or forced labour may be exacted by laying down that the responsibility for any recourse to compulsory or forced labour shall rest with the competent central authorities of the territory concerned.(200) It was against this background that the ILO Forced Labour Convention (No. 29), the provisions of which are discussed below, was adopted by the International Labour Conference in 1930.(201) The Convention explicitly states that "the illegal exaction of forced or compulsory labour shall be punishable as a penal offence" and that the penalties imposed must be "really adequate" and "strictly enforced".(202)

201. Thirty years later, the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery was adopted at the initiative of the United Nations Economic and Social Council on 7 September 1956. This Convention supplements the 1926 Convention by condemning the practice in a more general manner and establishing more far-reaching provisions for the criminalization of slavery, the slave trade and practices similar to slavery;(203) among the latter, the Convention refers, inter alia, to debt bondage, serfdom and the exploitation of the labour of a young person under the age of 18 years by someone to whom he or she was delivered by his or her parents or guardian for this purpose.(204) The Forced Labour Convention, 1930 (No. 29), was complemented by the Abolition of Forced Labour Convention, 1957 (No. 105) which was adopted by the International Labour Conference in 1957.(205)

202. Since 1945, many States have prohibited forced labour at the constitutional level.(206) Moreover, several international human rights instruments explicitly prohibit this form of denigration of the individual.(207) These instruments do not define forced labour; reference should therefore be made to the relevant Conventions and resolutions of the ILO.(208) The prohibition of recourse to forced labour, including the right to the free choice of employment, is closely related to the protection of other basic human rights: the right not to be subjected to torture or to other cruel, inhuman or degrading treatment, and even the right to life. In the case of armed conflicts, civilians and prisoners of war are offered protection against forced labour under the terms of the applicable international instruments.(209)

203. The Commission concludes that there exists now in international law a peremptory norm prohibiting any recourse to forced labour and that the right not to be compelled to perform forced or compulsory labour is one of the basic human rights. A State which supports, instigates, accepts or tolerates forced labour on its territory commits a wrongful act for which it bears international responsibility; furthermore, this wrongful act results from a breach of an international obligation that is so essential for the protection of the fundamental interests of the international community that it could be qualified, if committed on a widespread scale, as an international crime under the terms of article 19 of the draft articles of the International Law Commission on state responsibility.(210)  Similarly, the International Court of Justice has qualified the obligation to protect the human person against slavery as an obligation erga omnes since, in view of the importance of this right, all States can be held to have a legal interest in its protection.(211)

204. Finally, any person who violates this peremptory norm is guilty of a crime under international law and thus bears individual criminal responsibility. More specifically, enslavement, which was defined by the International Law Commission as "establishing or maintaining over persons a status of slavery, servitude or forced labour contrary to well-established and widely recognized standards of international law"(212) is also, if committed in a widespread or systematic manner, a crime against humanity that is punishable under the terms of the statutes setting up the four ad hoc international criminal tribunals established since the Second World War to try those responsible for serious violations of international humanitarian law,(213) as well as under the draft statute for an international criminal court and the draft code of crimes against the peace and security of mankind adopted by the International Law Commission in 1994(214) and 1996(215) respectively.

B. Requirements of the Forced Labour
Convention, 1930 (No. 29)

(1) Measures called for under Articles 1(1)
and 25 of the Convention

205. The basic obligation undertaken by a State which ratifies the Forced Labour Convention, 1930, is "to suppress the use of forced or compulsory labour in all its forms within the shortest possible period".(216) This obligation to suppress the use of forced or compulsory labour, as defined in the Convention,(217) includes for the State both an obligation to abstain and an obligation to act. In the first place, the State must neither exact forced or compulsory labour nor tolerate its exaction, and it must repeal any laws and statutory or administrative instruments that provide or allow for the exaction of forced or compulsory labour, so that any such exaction, be it by private persons or public servants, is found illegal in national law. Secondly, the State must ensure that "the illegal exaction of forced or compulsory labour shall be punishable as a penal offence" and "that the penalties imposed by law are really adequate and are strictly enforced".(218)

(2) Definition of forced or compulsory labour
and scope of exceptions

206. The Convention defines "forced or compulsory labour" as "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily".(219) As noted by the Committee of Experts on the Application of Conventions and Recommendations,(220) it was made clear during the consideration of the draft instrument by the Conference that the penalty here in question need not be in the form of penal sanctions, but might take the form also of a loss of rights or privileges.(221) Concerning the criteria for "offering oneself voluntarily", the Committee of Experts pointed out that with regard to child labour, the question arises whether, and if so, under what circumstances a minor can be considered to have offered himself or herself "voluntarily" for work or service and whether the consent of the parents is needed in this regard and whether it is sufficient, and what the sanctiions for refusal are. In this connection, the Committee also recalled that, in regulating recourse to compulsory labour during a transitional period following the entry into force of the Convention (1 May 1932), the Conference specifically excluded in Article 11 the call-up of any persons below the age of 18.(222)

207. The Convention provides specifically for the exemption of certain forms of compulsory service(223) which otherwise would have fallen within the general definition of forced or compulsory labour but are thus excluded from the scope of the obligations imposed on ratifying States, subject to the observance of certain conditions that will be considered below.

(a) Compulsory military service

208. The Convention exempts from its scope "any work or service exacted in virtue of compulsory military service laws for work of a purely military character".(224) As the Committee of Experts on the Application of Conventions and Recommendations noted in its 1979 General Survey on the abolition of forced labour,(225) the discussions which took place when the draft Convention was under consideration by the Conference help to explain both the purpose and scope of this exception. There was general agreement that compulsory military service as such should remain beyond the purview of the Convention. Considerable discussion however took place with regard to systems existing at the time in various territories, whereby persons liable to military service but not in fact incorporated in the armed forces might be called up for public works. It was pointed out that to sanction this form of labour implicitly by excluding it from the scope of the Convention would be to sanction a system which ran counter to the avowed purpose of the Convention -- namely the abolition of forced or compulsory labour in all its forms, for public purposes as well as for private employers. It was also stressed that the reason and justification for compulsory military service was the necessity for national defence, but that no such reason or justification existed for imposing compulsory service obligations for the execution of public works. The Conference accordingly decided that compulsory military service should be excluded from the Convention only if used for work of a purely military character.(226)

209. The Committee of Experts also recalled that the provisions of the 1930 Convention relating to compulsory military service do not apply to career servicemen. Consequently, on the one hand, the Convention is not opposed to the performance of non-military work by persons who are serving in the armed forces on a voluntary basis and, on the other hand, the fact that compulsory military service is not covered by the Convention cannot be invoked to justify denying career servicemen the right to leave the service either at certain reasonable intervals or by means of notice of reasonable length.(227) Although, in such cases, employment is originally the result of a freely concluded agreement, the worker's right to free choice of employment remains inalienable.(228) The Committee has accordingly considered that the effect of statutory provisions preventing termination of employment of indefinite duration by means of notice of reasonable length is to turn a contractual relationship based on the will of the parties into service by compulsion of law, and is thus incompatible with the Conventions relating to forced labour. This is also the case when a worker is required to serve beyond the expiry of a contract of fixed duration.(229)

(b) Normal civic obligations

210. The Forced Labour Convention exempts from its provisions "any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country".(230) As noted by the Committee of Experts on the Application of Conventions and Recommendations, three exceptions specifically provided for in the Convention refer to certain forms of work or service which constitute normal civic obligations: compulsory military service,(231) work or service required in cases of emergency,(232) and minor communal services.(233) Other examples of normal civic obligations mentioned by the Committee of Experts are compulsory jury service and the duty to assist a person in danger or to assist in the enforcement of law and order. The Committee pointed out that these exceptions must be read in the light of other provisions of the Convention and cannot be invoked to justify recourse to forms of compulsory service which are contrary to such other provisions.(234)

(c) Prison labour

211. The Convention exempts from its provisions "any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations".(235) Unlike the other exceptions provided for in the Convention which are concerned with cases of calling up persons for the purpose of performing particular work or services, this case relates to the consequences of punishment imposed as a result of the conduct of the individuals concerned. However, as pointed out by the Committee of Experts, two of the conditions laid down in regard to the exaction of prison labour, namely that prison labour may be imposed only as a consequence of a conviction in a court of law and that the persons concerned should not be placed at the disposal of private individuals, companies or associations are important guarantees against the administration of the penal system being diverted from its true course by coming to be considered as a means of meeting labour requirements.(236)

(d) Emergencies

212. The Convention exempts from its scope "any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population".(237) The Committee of Experts has pointed out that the concept of emergency -- as indicated by the enumeration of examples in the Convention -- involves a sudden, unforeseen happening calling for instant counter-measures.(238) To respect the limits of the exception provided for in the Convention, the power to call up labour should be confined to genuine cases of emergency. Moreover, the duration and extent of compulsory service, as well as the purpose for which it is used, should be limited to what is strictly required by the exigencies of the situation.(239)

(e) Minor communal service

213. The Convention also exempts from its provisions "minor communal services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services".(240) The Committee of Experts has drawn attention to the criteria which determine the limits of this exception and serve to distinguish it from other forms of compulsory services which, under the terms of the Convention, must be abolished (such as forced labour for general or local public works). These criteria are as follows:

(3) Present status of Article 1, paragraph 2,
and Articles 4 et seq. of the Convention

214. While States ratifying the Convention are obliged "to suppress the use of forced or compulsory labour in all its forms(242) within the shortest possible period+-",(243) the Convention, as adopted in 1930, provides that: "With a view to this complete suppression, recourse to forced or compulsory labour may be had during the transitional period, for public purposes only and as an exceptional measure, subject to the conditions and guarantees hereinafter provided" (Article 1, paragraph 2). There is no definition of what is meant by the transitional period, nor how long it should last, although under Article 1, paragraph 3, "the possibility of the suppression of forced or compulsory labour in all its forms without a further transitional period and the desirability of placing this question on the agenda of the Conference" was to be considered by the Governing Body "at the expiration of a period of five years after the coming into force of this Convention".(244) The essential purpose of the transitional period was to allow, in particular a colonizing member State, a window within which to attain complete suppression of all forced or compulsory labour.

215. Article 1, paragraph 2, qualified the obligation contained in Article 1, paragraph 1, to a limited extent so that forced or compulsory labour could be used during the transitional period, only as an exceptional measure for public purposes and subject to the conditions and guarantees laid down in the Convention.(245) These conditions and guarantees aim at limiting the power to exact the work or service in question to specified authorities,(246) to ensure that labour is exacted only in cases of present or imminent necessity for work of important direct interest to the community called upon to perform it,(247) to safeguard the social and physical conditions of the population,(248) and to ensure the observance of certain minimum standards as regards hours of work, weekly rest, remuneration, workmen's compensation, health and welfare.(249) Special conditions are laid down with regard to compulsory porterage and compulsory cultivation.(250)

216. In the light of these conditions and guarantees, a number of forms of forced or compulsory labour were to be suppressed immediately, regardless of any period of transition. These included forced or compulsory labour for the benefit of private individuals, companies or associations,(251) forced or compulsory labour exacted from women, from men under 18 years or over 45 years, or from disabled persons,(252) compulsory cultivation otherwise than as a precaution against famine or deficiency of food supplies,(253) forced or compulsory labour for work underground in mines,(254) and forced or compulsory labour exacted by persons or authorities to whom under the terms of the Convention such power should not be granted.(255)

217. As pointed out by the Committee of Experts on the Application of Conventions and Recommendations in 1962, 1964 and 1968, the undertaking by ratifying States "to suppress the use of forced or compulsory labour in all its forms within the shortest possible period" precludes them from introducing new forms of forced or compulsory labour within the scope of the Convention and also from having recourse to any forms of such labour which, while existing at the time of entry into force of the Convention for the country concerned, had in the meantime been abolished.(256) In 1968 the Committee also noted that, having regard to this effect of the undertaking arising out of ratification and also to the nature of the forms of compulsion to be found in some existing laws, relatively few of the countries bound by the Convention were still in a position to avail themselves of the transitional arrangements permitted by this instrument.

218. In 1997, the Committee of Experts observed that:

The Commission of Inquiry shares this view, having regard also to the status of the abolition of forced or compulsory labour in general international law as a peremptory norm from which no derogation is permitted.(258)

10. Brief description of Myanmar

(1)  General presentation

219. Myanmar is situated in South-East Asia, bordering China to the north and north-east, Laos and Thailand to the east, the Andaman Sea and the Bay of Bengal to the south and Bangladesh and India to the west; it is bounded to the north, east and west by mountain ranges which enclose the fertile plains of the Ayeyarwady (Irrawaddy), Chindwin and Sittaung (Sittang) river systems. The country is divided into 14 first-order administrative regions: seven States with a majority non-Burman population, and seven Divisions with a majority Burman population.(259) These States and Divisions are then divided further into districts, each comprised of several townships (administrative regions centred around a town). Townships are subdivided into village-tracts (in rural areas) and wards(260) (in towns). Each village-tract normally comprises several villages, and is named after the main village in the group.

220. According to a 1996-97 government estimate, the country had a population of 45.6 million,(261) of which only 26 per cent is classified as urban, and a total labour force of 18.8 million (4.2 million urban, 14.6 million rural). Agriculture accounts for 63 per cent of total employment.

221. The Government officially recognizes 135 different national groups. The Burmans make up about two-thirds of the population; other major groups include the Karen, Shan, Mon, Rakhine, Rohingya, Chin, Kachin and Karenni.(262) Accurate population figures for these groups are not available, since no detailed census has been attempted since 1931 and current estimates vary considerably.(263)

222. The dominant religion in Myanmar is Buddhism, practised by around 89 per cent of the population. As well as being observed by most Burmans, Buddhism is also dominant among several other groups (notably the Mon, Rakhine, Shan and many Karen). Other religions include Christianity and Animism, practised chiefly by the non-Burman groups; there is also a sizeable population of Muslims, including the Rohingyas and other people mostly originating from the Indian subcontinent.

223. The currency of Myanmar is the kyat. The official exchange rate averaged 6.2 to the US dollar in 1997; the more widely used free-market rate averaged 250 to the dollar in the same period.(264)

(2)  Historical background

224. In three Anglo-Burmese wars between 1824 and 1885, the British took control of the territory of Burma. From then until 1948 the country was administered as part of British India, except for a brief occupation by the Japanese during the Second World War. In July 1947 the leader of the Burmese independence struggle and presumptive first Prime Minister of independent Burma, Aung San, was assassinated. The first Constitution of Burma was adopted in September 1947. A few months later, on 4 January 1948, Burma gained its independence, with U Nu as its first Prime Minister.

225. There followed a brief period of civilian rule, but this was plagued by communist and ethnic insurgency and disagreements within the Government. In March 1962 the military under General Ne Win took power in a coup. A Revolutionary Council under the chairmanship of Ne Win was formed, and this Council invested Ne Win with full legislative, judicial and executive power. The Burma Socialist Programme Party (BSPP) became the official party of the new Government. In January 1974 a new Constitution was formally adopted, to replace the rule-by-decree of the Revolutionary Council.

226. In 1988, general discontent resulting from economic stagnation and suppression of political freedom developed into a nationwide mass movement. Aung San Suu Kyi, daughter of independence leader Aung San, emerged as the leader of this movement. In July 1988, Ne Win resigned as the chairman of the BSPP, but the protests gathered strength. On 8 August 1988 a general strike was called across the country and in response troops were ordered to open fire on the crowds of demonstrators; thousands of these demonstrators were killed or injured. The demonstrations continued, however, and on 18 September 1988 the military announced a coup, abolished all state organs, and established the State Law and Order Restoration Council (SLORC) to take their place.(265) The 1974 Constitution was also suspended. The demonstrations were violently suppressed; nevertheless, the SLORC promised that elections would be held, and political parties were allowed to register.

227. Elections were held in May 1990. While more than 200 parties registered, the main contenders were the National League for Democracy (NLD), whose General-Secretary was Aung San Suu Kyi, and the National Unity Party (NUP) of the military. The election was held under very restrictive conditions. Several party leaders were detained, including Aung San Suu Kyi, who was placed under house arrest in July 1989. Nevertheless, the NLD won an overwhelming victory, with 60 per cent of the votes cast leading to over 80 per cent of the 485 seats in the legislature. The NUP won only ten seats.

228. The SLORC did not accept this result or convene the new legislature; instead it claimed that the election had been solely to elect representatives to a National Convention, whose task it was to draw up a new Constitution. This National Convention first met in January 1993. Only 15 per cent of its members were elected representatives, however, and following a boycott by the NLD and the party's subsequent expulsion only 3 per cent of the Convention's members had been elected in the 1990 election. The Convention has not met since March 1996, and Myanmar still operates without a Constitution.

229. On 15 November 1997, the SLORC dissolved itself and appointed a new 19-member State Peace and Development Council (SPDC) in its place.(266) The four most senior members of the SLORC, Senior General Than Shwe, General Maung Aye, Lieutenant General Khin Nyunt and Lieutenant General Tin Oo, retained their positions, and other younger military commanders, including the heads of the military's 12 Regional Commands (see para. 232 below), filled the remaining posts. Former SLORC members were moved aside into an advisory body which was subsequently dissolved.(267)

(3)  Administrative structure

230. When it came to power in 1988, the SLORC established regional Law and Order Restoration Councils (LORCs) at the state/divisional, district, township and ward/village-tract levels. When the SLORC was replaced by the SPDC, these regional LORCs were renamed Peace and Development Councils (PDCs).(268)

231. Since 1988, the Government of Myanmar has undertaken an expansion and modernization of the Tatmadaw (armed forces), which has grown in size from 186,000 in mid-1988(269) to 429,000 by mid-1997.(270) The army accounts for the majority of these personnel, with a reported strength of some 400,000.(271)

232. The Myanmar army is divided into 12 Regional Commands, which together control 145 infantry battalions (the KaLaYa, or IBs);(272) and ten mobile Light Infantry Divisions, which together control another 100 infantry battalions (the KaMaYa, or LIBs).(273) There is also a small number of specialized battalions, and a number of Military Intelligence (MI) units.(274)

233. In addition to the Tatmadaw, other government military groups include the People's Militia and the NaSaKa, a border security force created in 1992 and made up of the Immigration and Manpower Department, police, Lone Htein (riot police), Military Intelligence and customs officials; it only exists in Buthidaung and Maungdaw townships (though the agencies of which it is comprised are found throughout Myanmar); it is under the army's Western Command based in Sittway (Akyab).(275)

234. One armed ethnic organization, the Democratic Kayin Buddhist Army (DKBA), allied itself with the Government shortly after it was formed in December 1994, and operates as government militia in its areas of influence in Kayin State.

235. A note on names. In June 1989 the Government changed the name of the country from "Union of Burma" to "Union of Myanmar". The English spellings of several other place names were also subsequently changed.(276) The Commission uses these revised spellings in the report, but also gives alternative names following the official name, where this is necessary to avoid confusion as to the place which is being referred to. With regard to the names used for various ethnic groups in the country, the Commission decided to follow the usage of the persons concerned whom it met.

(4)  Opposition forces

236. Since independence there have been many armed groups in opposition to the Government, some of which have at various times established territorial control over large areas. Since 1989, cease-fires have been concluded between the Government and several of the remaining groups. Those which agreed to cease-fires included the United Wa State Army (UWSA) and the Shan State Army (SSA) in 1989, the Kachin Independence Organization (KIO) in 1994, the New Mon State Party (NMSP) in 1995 and the Mong Tai Army of drug warlord Khun Sa in 1996. Groups which remain active and have yet to agree to cease-fires include the Karen National Union (KNU), which has been active since the 1940s, the All Burma Students' Democratic Front (ABSDF), the Chin National Front (CNF), and the Rohingya Solidarity Organization (RSO), which became active more recently. In addition it was announced in January 1998 in Shan State, following an agreement reached in September 1997, that the Shan United Revolutionary Army (SURA) had joined forces with two groups which had concluded cease-fires with the Government, the SSA and the Shan State National Army (SSNA), to form a "new" Shan State Army (still known by the acronym SSA); this new group is currently in armed opposition to the Government.(277)

11. Legislation of Myanmar
relevant to the case

(1)  Requisition of labour under the
Village Act and Towns Act and
subsequent orders and directives

237. After having stated for many years that the provisions of the Village Act (1908) and the Towns Act (1907) which empower headmen and rural policemen to impose compulsory labour on residents of the labouring class had become obsolete and were no longer applied,(278) the Government indicated in October 1993 that "the use of voluntary labour, alleged compulsory or forced labour, is made only for the urgent necessity in accordance with the following provisions: (a) section 8(1)(g)(n) and (o) of the Village Act (1908); (b) section 9(b) of the Towns Act".(279)

238. The relevant provisions of section 8(1) of the Village Act (1908) were submitted by the Government(280) in October 1993 in the following wording:

Section 7(1)(m) of the Towns Act (1907) corresponds to section 8(1)(n) of the Village Act (1908) and is also preceded by a proviso "that no headman shall requisition for personal service any resident of such ward who is not of the labouring class and accustomed to do such work as may be required".

239. Under Section 11 of the Village Act:

Under section 12 of the same Act:

240. Similarly, section 9 of the Towns Act (1907) provided that:

Section 9A of the same Act provides that:

241. The Commission notes the indication by Daw Aung San Suu Kyi(281) that such things as having to gather in the harvest, or needing to work in the field, would have been accepted as "reasonable excuse" under the original section 12 of the Village Act, as reproduced above, but that nowadays, this provision translated into Burmese has left out the phrase "in the absence of reasonable excuse", so "under this law, the authorities are able to force the people in the villages to do anything they like ...". The Commission did not have at its disposal the Burmese text of the Village Act, nor of the Towns Act (the English text of which likewise referred to the absence of reasonable excuse).(282)

242. As regards the range of duties which every headman shall be bound to perform, and in the execution of which residents shall be bound to assist him on his requisition (or that of a rural policeman), section 8(1)(g) of the Village Act specifically refers to the supply of guides, messengers, porters, etc., while section 8(1)(n) and (o) of the same Act, as well as section 9(b) of the Towns Act, also invoked by the Government(283) in 1993, contain general references to the execution of "public duties" and "such acts as the exigency of the village may require". In this connection, the Commission's attention has been drawn to the fact that provision for the requisition of "labourers for the making or repair of roads, embankments or other public works", originally made in section 8(1)(h) of the Village Act, 1908,(284) was specifically deleted by Burma Act IV of 1924.(285)

243. Executive Orders made subsequently under the Village Act indicated in paragraph 76 that clause (n) of section 8(1) of the Village Act:

According to paragraph 78 of the same Executive Orders:(287)

244. Paragraph 70 of the same Executive Orders(288) stressed in relation to clause (g) of section 8 of the Village Act that "all supplies which it costs money or labour to procure and all carriage should be paid for at full rates".

245. Over half a century later, concern about "causing misery and sufferings to the local population" and the non-remuneration of labour obtained "from the local populace in carrying out national development projects, such as construction of roads, bridges and railways as well as the building of dams and embankments" (i.e. projects for which the requisition of labour under former section 8(1)(h) of the Village Act had been altogether abolished by Burma Act IV of 1924)(289) was expressed in an Order dated 2 June 1995 by the Chairman of the State Law and Order Restoration Council (SLORC) to State/Division Law and Order Restoration Councils on the subject of "Prohibiting unpaid labour contributions in national development projects".(290) While marked "secret", this Order has according to the Government(291) "the full legal force and effect in Administrative Law". The Order makes no reference to the Village Act or the Towns Act. It notes in paragraph 1 that "it has been learnt that in obtaining labour from the local populace in carrying out national development projects, such as construction of roads, bridges and railways as well as building of dams and embankments, the practice is that they have to contribute labour without compensation". While observing (in paragraph 3) that "causing misery and sufferings to the people in rural areas due to the so-called forced and unpaid labour is very much uncalled for", the Order does not put into question the requisition of labour for national development projects but stresses (in paragraph 2) that "it is imperative that in obtaining the necessary labour from the local people, they must be paid their due share".

246. A Directive (No. 82) dated 27 April 1995 by the Chairman of the SLORC, to the Ministry of Agriculture, the Chairman of the Yangon Division LORC and the Commander of No. 11 Light Infantry Division, with the subject "To stop obtaining labour without compensation from the local people in irrigation projects" stated that:

Also marked "secret", this Directive was submitted to the UN Special Rapporteur.(292)

247. Under paragraph 72 of the Executive Orders made pursuant to the Village Act:

248. While the Government has indicated that the Village Act and the Towns Act remain in force, it has not specified the present status of Executive Orders made under the Village Act. It has, however, repeatedly stated that porters injured were compensated in accordance with the prevailing law.(294)

(2)  Restrictions on the freedom
of movement and citizenship

249. Where compulsory labour may be imposed on residents of village-tracts and town wards,(295) restrictions on the freedom of movement of residents have a bearing on their exposure to such compulsory labour. The Commission has received indications that not only all movements are subject to reporting requirements and every resident is obliged to register overnight guests with the local authorities,(296) but also, and more importantly, freedom of movement is restricted to those residents who carry identity documents that identify them as citizens.

250. Under section 10 of the Foreigners Act, no foreigner shall travel in Myanmar without a license; under section 12, every such license shall state the name of the person to whom the license is granted, the nation to which he belongs, the district or districts through which he is authorized to pass or the limits within which he is authorized to travel, and the period (if any) during which the license is intended to have effect.(297) According to section 13, the licence may be granted subject to such conditions as the officer granting the licence may deem necessary, and may be revoked at any time by such officer.

251. A large group in Rakhine State, the Rohingyas, have been progressively denied citizen status.

252. Section 11 of the Constitution of the Union of Burma of 24 September 1947 provided that:

Notwithstanding the provisions of section 11 of the Constitution of 1947, the Rohingyas were not recognized by the Government as citizens, save for those who could establish their citizenship under subsection (iv). However, section 12 of the Constitution provided that:

In 1948, a new Citizenship Act was adopted which restricted the scope of subsection 11(iv) of the Constitution to any person "from ancestors who for two generations at least have all made any of the territories included within the Union their permanent home and whose parents and himself were born in any such territories".(300) 

253. A further Citizenship Law was adopted in 1982 which repealed the 1948 Act and defined three categories of citizens: "citizens", "associate citizens" and "naturalized citizens". "Citizens" were limited to "nationals such as the Kachin, Kayah, Karen, Chin, Burman, Mon, Rakhine or Shan and ethnic groups as have settled in any of the territories included within the State as their permanent home from a period prior to 1185 B.E. [Buddhist Era], 1823 A.D.". A list of recognized ethnic groups was later published including the Kaman and Zerbadee but not Rohingyas. If a person cannot give proof of residence of all ancestors prior to 1823 A.D., he or she can be classified as an "associate citizen" if one grandparent, or pre-1823 ancestor, was a citizen of another country. Those persons who had qualified for citizenship under the 1948 law, but who would no longer qualify under this new law (i.e. those people whose ancestors came to Burma two generations prior to 1948), were also considered "associate citizens" if they had applied for citizenship in 1948. However, under the new law, an application to be recognized as an "associate citizen" had to be made within one year of the promulgation of the law, and after that time all former foreigners or stateless persons are only able to apply for naturalization.(301)

254. Under the new law, few Rohingyas could qualify as "citizens" and many would not be recognized as either "associate citizens" or "naturalized citizens" due not only to their individual histories but also to the difficulty of providing evidence substantiating their ancestry. Thus, most Rohingyas are only recognized as foreign residents.(302) This was confirmed by the testimonies given by Rohingya witnesses to the Commission, who reported on the need to ask for permission each time they were to leave their village.(303)

(3)  Compulsory military service
and forced conscription

255. There is a People's Militia Act, 1959, which was published in the Official Gazette. Under the provisions of the Act,(304) Myanmar nationals can be called up for full-time or part-time service in the armed forces. Under section 3(a), subparagraphs 1 and 2, all men from age 18 to 35 and all women from age 18 to 27 can be called for full-time service in the armed forces for a period of not less than six months and not more than 24 months; under subparagraphs 4 and 5, doctors, engineers or persons having any other skill can be called for military service for a period of 24 months between the ages of 27 and 35 in the case of women, and for a period of 18 months between the ages of 35 and 56 in the case of men.(305) Under section 3(b), all men from age 18 to 46 and all women from age 18 to 35 can be called for part-time service, i.e., for a total of not more than 30 days a year, which may be increased by seven days in certain cases.

256. The People's Militia Act, as adopted in 1959, does not contain any provisions under which work or service is to be exacted for work of a non-military character.(306)

257. Under section 1(2) of the People's Militia Act, "This Act shall come into force on a day to be notified by the Government". The Commission is not aware whether such notification has been made and the Act brought into force.(307)

(4)  Sanctions for illegally imposing forced
or compulsory labour

258. Under section 374 of the Penal Code:(308)

12. Findings of the Commission
concerning the facts
(309)

A.  Admissibility and probative value
of testimonial evidence and
documentary material

259. In addition to the testimony heard during the hearings in November 1997 and the visit of the Commission to the region in January and February 1998, 274 documents, totalling nearly 10,000 pages in the official Commission registries, have been communicated to the Commission since the commencement of the procedure. This written information was transmitted by the parties and other solicited sources,(310) as well as by witnesses and other persons during the hearings(311) or the visit of the Commission to the region.(312) These documents have been carefully itemized by the secretariat and indexed according to the date on which they were received by the Commission; the lists of documents transmitted to the Commission are to be found in Appendices IV, V and VI to this report.(313)

260. The Commission is thus in possession of evidence submitted in both written and testimonial forms. While the Commission, in its pursuit of gathering full and detailed information, prefers the direct testimony of a witness who claims to have experienced or observed facts relevant to the inquiry, it nevertheless considers that the copious documentation communicated to it constitutes an important source of information which may serve to support or refute in one way or another the allegations contained in the complaint. The Commission notes that there is no rule in international law restricting the admissibility of written or oral evidence. The practice of the International Court of Justice is that flexibility is the guiding principle; international tribunals are not bound by such strict rules of evidence as those of national tribunals, many of which are not appropriate to international disputes.(314) In this spirit, the Rules of the International Court of Justice aim at making the procedure as simple and expeditious as possible and its provisions "have to do with time-limits and other matters designed 'to guarantee the sound administration of justice, while respecting the equality of the parties'. They do not bear on the categories of material admissible as evidence, or on the principles by which evidence is assessed by the Court".(315)

261. Moreover, the ILO Governing Body left the Commission entirely free to decide on its own rules concerning the admissibility of evidence in accordance with the provisions of the ILO Constitution. Accordingly, in adopting its own rules of procedure the Commission followed the custom established by the nine Commissions of Inquiry which preceded it. In these circumstances, the Commission considers that both written and oral forms of evidence should be admitted.

262. Oral testimony. The clear preference of the Commission is that direct oral testimony of a witness claiming to have experienced or observed facts, if accepted, has the highest probative value.

263. In the course of the inquiry, testimony was given by witnesses in Geneva, and further on locations as described respectively in Chapters 2 and 5 of this report.

264. With regard to the evidence obtained for the Commission with the assistance described in paragraph 81 above, the Commission also considers this to be direct oral testimony and to be of high probative value because of the circumstances of its taking, though clearly not as high as that which the Commission heard itself.

265. Documentary material. The documentary material which was submitted and admitted before the Commission fell into a number of different categories:

(1) written statements from persons who had themselves obtained statements from others claiming to have experienced or observed relevant matters ("secondary statements") and who were questioned before the Commission. The statements from persons who gave evidence also included statistical, historical and research material as well as analyses;

(2) written communications containing secondary statements from persons claiming to have experienced or observed relevant matters, as well as containing statistical research, historical and material analyses. However, the purveyors of that material did not give evidence before the Commission;

(3) written communications from parties, persons or organizations which contained assertions, statistical, historical and research material as well as analyses, but not secondary statements. Some of the purveyors of that material were questioned before the Commission and some were not;

(4) other documents including (a) originals or copies of military orders, (b) videos and photos, and (c) newspaper reports.

266. Generally speaking documentary material was regarded by the Commission as less probative on the facts than the oral testimony. Further, some categories of documentary material were more probative, prima facie, than others.

267. With regard to category 1 documentation, this was clearly admissible and, prima facie, had greater probative value than the other categories of documents save category 4(a). The persons who provided the written statements also gave testimony about the manner and circumstances of the taking of the secondary statements. To this extent this material could have been described as oral evidence but for convenience is characterized as documentary evidence.

268. With regard to category 2 documentation, this also was admissible but was of, prima facie, less probative value than category 1 as the Commission did not have the benefit of being able to satisfy itself as to the voluntariness and truthfulness of the statements.

269. With regard to category 3 documentation, this contained more generalized rather than specific material but provided helpful background where it could be corroborated by other material.

270. With regard to category 4, documents in (a) being the military orders were of high probative value as to relevant matters. Documents in (b), except where the contents were the subject of explanatory evidence, had little probative value. Documents in (c) were largely from government publications The New Light of Myanmar and its predecessor the Working People's Daily and were taken as being indicative of government attitude.

271. In reaching the findings of fact set out in section B, the Commission relied on documentary material as described in the four categories above. This material provided a generalized background and pattern of practices.

272. In reaching the findings of fact set out in section C, the Commission again relied on the same documentary material as in section B and has identified those parts within section C. This again reflected a general pattern of practices. Further, in section C, the Commission has relied on oral testimony and has identified those parts within section C. This oral testimony confirmed the pattern of conduct which emanated from the documentary evidence.

273. The reason for dividing the material in this way was to place the oral testimonies in an overall context of practice in Myanmar, and also to isolate this material which was the most probative evidence before the Commission.

B. General pattern of conduct by
Myanmar authorities

274. Information provided to the Commission indicated that the Myanmar authorities, including the local and regional administration, the military and various militias, forced the population of Myanmar to carry out a wide range of tasks. Labour was exacted from men, women and children, some of a very young age. Workers were not paid or compensated in any way for providing their labour, other than in exceptional circumstances, and were commonly subjected to various forms of verbal and physical abuse including rape, torture and killing. The vast majority of the information covered the period since 1988, the year in which the State Law and Order Restoration Council (SLORC) came to power. While the information indicated that the use of forced labour for all the purposes discussed was prevalent since at least 1988, the use of forced labour on infrastructure-related work appeared to have been much less common before 1992. In the paragraphs which follow, some indication of the range of purposes for which labour was requisitioned will be given, as it appears from the various documents and testimony provided to the Commission.

275. The information provided indicated that Myanmar's military and various militias made systematic and widespread use of civilians to provide logistical support. This most commonly involved the use of porters to carry a range of supplies and equipment. In comparison to other forms of compulsory labour, the treatment of porters, especially during military offensives, was particularly brutal; such porters were also likely to be exposed to danger in combat situations.(316)

276. In addition to providing porters for the military, villagers across the country, and to a lesser extent urban residents, were required to construct and repair military camps and provide general workers for these facilities on a permanent basis. A number of villagers had to be on permanent stand-by at camps to act as messengers. Villagers also had to provide the necessary materials for the construction and repair of these facilities. This included camps for militia groups such as the Democratic Kayin Buddhist Army (DKBA).(317)

277. The information also disclosed a variety of other tasks that people throughout Myanmar were requisitioned to carry out in support of the military, such as acting as guides, sentries and minesweepers. It appeared that such people were also used as human shields, in that they would be sent ahead of troops to draw enemy fire, trip booby-traps, or as hostages to prevent attacks against columns or army camps. This most often occurred in the context of portering, but also occurred independently. In addition, owners of vehicles regularly had to place these at the disposal of the military.(318)

278. The question of forced recruitment into the Tatmadaw and various militia forces was also brought to the attention of the Commission. In some cases recruits appeared to be arbitrarily requisitioned, without any reference to compulsory military service legislation, and included minors.(319)

279. Information was also received concerning the use of civilians on a variety of projects undertaken by the Myanmar authorities, most commonly by the military authorities for what appeared to be income-generation purposes. This ranged from the use of forced labour for cultivation and production of goods to extortion and theft of property.(320)

280. The information revealed that over the last ten years the Government of Myanmar had implemented a large number of national and local infrastructure projects, in particular the construction and improvement of various roads and railways and associated infrastructure such as bridges. These projects appeared to be constructed in large part with the use of forced labour, sometimes involving hundreds of thousands of workers.(321)

281. Similarly, it appeared that forced labour was used by the Government in relation to a range of other infrastructure projects and public works such as dams, irrigation works and airports.(322)

282. Urban residents in particular were required to work, usually one day per week, on the cleaning and maintenance of urban areas. This was organized by the ward authorities, but was often supervised by the military.(323)

283. The information provided indicated that the use of forced labour for the purposes mentioned above occurred throughout Myanmar, and affected Burmans and the other ethnic groups in the country. It appeared, however, that there was significantly more forced labour in rural areas, particularly in less developed areas such as the seven States. Since these States have a majority non-Burman population, the burden of forced labour thus fell disproportionately on the non-Burman ethnic groups in Myanmar.

284. It appeared that persons exacting forced labour in Myanmar were not subject to legal sanction, and were therefore enjoying full impunity. Several witnesses who had undertaken general research and investigation informed the Commission that there had been, to their knowledge, no cases of persons being punished for forcing others to provide their labour, or for committing abuses against those so forced.(324)

285. The numbers of people in Myanmar affected by forced labour appeared to be vast. In 1995, Human Rights Watch/Asia estimated that since 1992 at least two million people had been forced to work without pay on the construction of roads, railways and bridges.(325) An indication of the large scale of some of the projects on which it is claimed that forced labour was used can be gained from statistics published by the Government of Myanmar in its official newspaper, The New Light of Myanmar.(326)

286. In rural areas, orders were transmitted to villagers through their village head. The village head received instructions, sometimes verbally, but more often in written form, from either the local administration (at the village-tract or sometimes the township level) or the military (the local military camp or battalion headquarters).(327) These instructions usually specified that a given number of persons had to be provided by a given date, or that a given amount of work had to be completed within a given time-frame. It was then left to the village head to make the arrangements. Often, the village head would instruct a certain number of households in the village to provide one person for a certain period of time, usually one to two weeks; at the end of this period, the workers were replaced by villagers from the other households in the village. On certain occasions, the order given to the village head would specify that one person from each household in the village had to be sent, leaving no possibility for rotating the requirement among the households in the village.

287. In urban areas, orders were transmitted to individuals through officials of the ward administration. These officials received instructions from the township administration or local military specifying the number of workers required or the amount of work to be completed in a given time. The ward administration officials then made the necessary arrangements. They often rounded up people arbitrarily or sent them as a punishment for some minor offence, but they also commonly held a "lottery" to choose which of the residents of the ward had to go. The only way to avoid taking part in the lottery, or avoid the obligation once chosen, was to pay a sum of money so as to be exempted.

288. Small-scale labour demands usually originated at the battalion or township level, but larger-scale demands would usually originate from a higher level in the administrative or military hierarchy. For labour on large infrastructure projects or for porters in major military offensives, the order could originate at the national level and then be passed down through the state/divisional, district and township levels.(328) The Commission received copies of a large number of these orders (mostly from local army camp, battalion, village-tract and township levels).(329)

289. The written orders to provide porters and labourers which were sent to village heads by the local military or civil administration typically contained some kind of overt or implied threat. Examples of overt threats included such statements as "Anyone who refuses to come to build the road shall be punished according to the law", "If you don't come because you are afraid of Mon rebels, we the Army must show you that we are worse than Mon rebels", "I warn you that if you make excuses and fail to come, violent action will be taken against you" or "If nobody comes this time [you] will be destroyed by an artillery attack".(330) In one case when two villagers ran away from portering, an order from the military column to the village head demanding their return stated: "Should this happen in the future, we will take action and you will be charged with disturbing and causing delay to our military operations".(331) Examples of implied threats included statements such as "If you fail to comply it will be your responsibility", which villagers knew from experience meant that they would face serious punishment, or "If you fail to come we will not take any responsibility for [your] village", which the villagers knew was a threat to destroy their village.(332) Another common form of threat was the inclusion with the order of some combination of a bullet, chilli and piece of charcoal, implying that the recipient would be shot, face problems, or have their house or village burned down if they failed to comply with the order.(333)

290. Local authorities regularly required village heads to provide detailed information about the number of households in their area, and the composition of those households. These lists could then be used to decide how many workers a given village was required to provide, or the amount of work a village was required to complete.(334) When a worker was required from each household, this was usually irrespective of the number of able-bodied persons in the household, or their gender. This could cause particular problems for households without an able-bodied worker; in these cases children or the elderly would have to go if a replacement could not be found.

291. It appeared that a lack of effective coordination between the local military units, the local and regional authorities, and other bodies demanding forced labour could lead to sometimes impossible demands for labour. Such cumulative demands resulted in women, children and older persons being sent for forced labour duties, and could make it impossible for the household to earn a living. One way for people to deal with such a problem was to pay someone else to do forced labour in their place, or when possible pay a sum of money to the authorities to be exempted, but most rural villagers who lived on a subsistence basis could not afford to do this very often or for any great length of time. In addition, it was sometimes very difficult to find someone willing to work as a porter for military operations, because such work was particularly dangerous, and because there was a great demand for porters at such times.(335)

292. The information before the Commission was that the penalties for failing to comply with forced labour demands were harsh. Punishments included detention at the army camp, often in leg-stocks or in a pit in the ground, commonly accompanied by beatings and other forms of torture, as well as deprivation of food, water, medical attention and other basic rights. Women were subject to rape and other forms of sexual abuse at such times. The first person to be punished if a village failed to comply with demands for forced labour would usually be the village head. For this reason, the position of village head was an unpopular one, and it was often rotated among those villagers competent to do the job, in some instances with each villager having a rotation of as short as two weeks. Also, it was mentioned that villages often chose older women to be village heads, because the villagers felt that in virtue of being women they were likely to be treated less brutally, and by virtue of their age they were less likely to face rape or other sexual abuse.(336)

293. The information before the Commission indicated that populations which had been forcibly relocated were liable to face demands to provide their labour. Forced relocation of populations was a common strategy by the military in areas with active insurgencies. Remote villages were commonly ordered to relocate to areas which were more firmly under government control, usually either to larger towns, or to rural areas near to military camps. Such relocations could affect hundreds of thousands of people. It appeared that given their close proximity to the military, these relocated populations were particularly vulnerable to demands for portering and other kinds of forced labour.(337) In some cases it appeared that forced relocation had been used to provide a pool of readily accessible labourers close to a major infrastructure project, or at least that the presence of large relocated populations in the areas of some projects had been taken advantage of and used for forced labour on such projects. This was the case in Kayah State for the construction of the Aungban to Loikaw railway, for road construction in Tanintharyi Division, and for road and railway construction in Shan State.(338)

294. In addition to providing labour for various purposes, people throughout Myanmar also had to pay various fees and taxes. It was indicated to the Commission that in some cases these were arbitrary and discriminatory. It appeared that the Rohingya population of Rakhine State was particularly discriminated against in this way.(339)

295. Common fees and taxes which people in Myanmar were required to pay included porter fees, ostensibly for the payment of porters; monetary contributions to infrastructure projects (road tax, railway tax, etc.);(340) miscellaneous fees to local army camps, in the form of cash or goods; and a variety of taxes on agricultural produce, including compulsory purchase of a proportion of the rice crop by the authorities, at a rate well below the market rate. In addition to this, people also had to pay regular sums of money if they wanted to be exempted from forced labour assignments which were given to them; because of the arbitrary nature of taxation, it was often difficult to distinguish these payments from fees and taxes. In cases where people were unable to pay these taxes and fees, they were often required to provide labour or services instead, increasing the burden of uncompensated labour demands they faced.(341)

296. The information provided to the Commission indicated that the system for the forcible requisition of labour was largely similar across the country, and that the nature of this system was such that certain groups were particularly affected by these demands. In particular, since it appeared to be almost always possible to avoid forced labour if a sufficiently large sum of money was paid, the burden of forced labour fell disproportionately on the poorer sectors of society. The existence of a cash economy in urban areas also meant that urban residents were more likely to be able to pay to avoid forced labour.(342) In addition, non-Burman populations appeared to be particularly targeted for forced labour, particularly in rural areas (see also paragraph 283 above).(343) In particular, the Muslim population of Myanmar, including both the Rohingya population of Rakhine State and Muslim populations in other parts of the country, was particularly discriminated against in this way.(344) Treatment of this population also appeared to be especially harsh.(345)

297. The information before the Commission disclosed that there was a significant social and financial impact of forced labour on those who were subjected to it.(346) Forced labour caused the poorer sections of society who carried out the majority of the labour to become increasingly impoverished. Day labourers needed paid work every day in order to obtain sufficient income and that became impossible when they were forced to provide uncompensated labour. Families who survived on subsistence farming also required every member of the family to contribute to this labour-intensive work, particularly at certain times of the year. Demands for forced labour seriously affected such families. Families who were no longer able to support themselves often moved to an area where they thought the demands for forced labour would be less; if this was not possible, they would often leave Myanmar as refugees. Information provided to the Commission indicated that forced labour was a major reason behind people leaving Myanmar and becoming refugees.(347)

298. Finally, there was information before the Commission regarding the relationship between Buddhist values and labour contribution. The information indicated that while various deeds, including contribution of labour for certain purposes, were considered noble and meritorious according to the values held by Buddhists in Myanmar, it was not the case that labour for roads or bridges, or forced labour of any kind, could be considered noble and meritorious in this way. According to the information received, Buddhism was clear as to which kinds of acts were meritorious, and such things as construction of roads and bridges could not be considered among them; Buddhism was also clear that merit came not from the act itself, but from the intentions of the person in carrying out the act, so that an act which was forced to be carried out could not be considered meritorious. Furthermore, since much of the forced labour in the country was exacted from non-Buddhist ethnic people, considerations of this kind were irrelevant in these cases.(348)

Part IV (cont.)

 


188. Report of the Working Group on Contemporary Forms of Slavery on its ninetieth session, UN doc. CES E/CN.4/Sub.2/1994/33, para. 101(12); Report of the Working Group on Contemporary Forms of Slavery on its twentieth session (Geneva, 19-28 Apr. 1995), UN doc. CES E/CN.4/Sub.2/1995/28, para. 123(7). Benjamin Whitaker, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, in his updated version of the Report on Slavery, submitted to the Sub-Commission in 1966, identified more than a dozen manifestations of slavery and slavery-like practices including forced labour. Report by Benjamin Whitaker, Special Rapporteur, Updating of the "Report on Slavery" submitted to the Sub-Commission in 1966, UN doc. CES E/CN.4/Sub.2/1982/20/rev.1.

189. Final Act of the Congress of Vienna, reproduced in De Martens, Nouveau Recueil de Traités (NRT), 1814-1815, Tome II, p. 433. Austria, France, Great Britain, Prussia and Russia, meeting in Verona in 1822, reaffirmed their commitment to seeking the most effective means of preventing a trade which had already been declared illegal and repugnant by almost all civilized countries and to rigorously punish those who continue in breach of these laws: De Martens, NRT, 1822-1823, Tome VI.1, pp. 136-137.

190. By way of illustration, see the treaties concluded by Great Britain for the suppression of the slave trade at sea, including the additional Convention to the Treaty of 22 Jan. 1815 with Portugal, signed on 18 July 1817, replaced on 3 July 1842 and modified by the additional Convention of 18 July 1871 (reproduced in De Martens, Nouveau Recueil Général de Traités (NRG), Tome III, p. 511); with Spain on 23 Sep. 1817 (reproduced in De Martens, Nouveau Recueil de Traités (NRT),1808-18, Tome III, pp. 135-140), as modified and extended by the Treaty of 28 June 1835; with the Netherlands on 4 May 1818 (reproduced in De Martens, NRT, 1808-19, Tome IV, pp. 511-523); with Sweden-Norway on 6 Nov. 1824 (reproduced in De Martens, NRT, 1824-26, Tome VI.2, pp. 619-655); with France on 30 Nov. 1831, supplemented on 22 Mar. 1833 and suspended by another Treaty dated 29 May 1845 (reproduced in De Martens, NRG, 1845, Tome VIII, pp. 284-311); with the United States on 7 Apr. 1862 (reproduced in De Martens, NRG, 1847-64, Tome XVII.2, pp. 259-277) which was modified and extended in Feb. 1863 and June 1870 (reproduced in De Martens, NRG, 1837-1874, Tome XX, pp. 504-511).

191. The Treaty of London was signed by France, Great Britain, Austria, Russia and Prussia (reproduced in De Martens, NRG, 1841, Tome II, pp. 508-534). The Treaty deems the slave trade equal to piracy. It was not ratified by the French Government.

192. Art. 9, General Act of the Berlin Conference (reproduced in De Martens, NRG, 1853-85, Tome X, p. 419).

193. Reproduced in De Martens, NRG, 1881-90, IIème Série, Tome XVI, pp. 3-29. The General Act of Berlin of 26 Feb. 1885 and the General Act of the Brussels Conference were revised by the Convention signed at Saint-Germain-en-Laye on 10 Sep. 1919 under the terms of which the Signatory Powers "will endeavour to secure the complete suppression of slavery in all its forms and of the slave trade by land and sea" (reproduced in League of Nations Treaty Series (LNTS), 1922, Vol. VIII, No. 202, p. 35). Finally, at the Brussels Conference, the Treaty for the Suppression of the African Slave Trade was signed between Great Britain and Spain (reproduced in De Martens, NRG, 1882-93, IIème Série, Tome XVIII, pp. 168-173).

194. International Agreement with a view to securing the Effectual Suppression of the Criminal Traffic known as the "white slave traffic", signed in Paris on 18 May 1904 and the International Convention for the Suppression of the White Slave Traffic signed in Paris on 4 May 1910 by Germany, Austria-Hungary, Belgium, Brazil, Denmark, Spain, France, Great Britain, Italy, Netherlands, Portugal, Russia and Sweden (reproduced in De Martens, NRG, 1894-1913, IIIème Série, Tome VII, pp. 252-264).

195. It was signed by Albania, Germany, Austria, Belgium, Brazil, the British Empire (with Canada, the Commonwealth of Australia, the Union of South Africa, New Zealand and India), Chile, China, Colombia, Costa Rica, Cuba, Estonia, Greece, Hungary, Italy, Japan, Latvia, Lithuania, Norway, Netherlands, Persia, Poland (with Danzig), Portugal, Romania, Siam, Sweden, Switzerland and Czechoslovakia (reproduced in LNTS, 1922, Vol. IX, No. 269, pp. 415-433). The agreement of 18 May 1904 and the Conventions of 4 May 1910 and 30 Sep. 1921 were supplemented by a Convention for the Suppression of Traffic in Women of Full Age, signed in Geneva on 11 Oct. 1933 (reproduced in LNTS, 1934, Vol. CL, No. 3476, pp. 433-456). Previous instruments were unified in the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, approved by United Nations General Assembly resolution 317 on 2 Dec. 1949.

196. Reproduced in LNTS, 1927, Vol. LX, No. 1414, pp. 253-270. The Convention was amended in 1953 (reproduced in United Nations Treaty Series UNTS), 1953, Vol. CLXXXII, No. 2422, pp. 51-72.

197. Art. 1(1).

198. Arts. 2 and 6.

199. Art. 5.

200. Art. 5(3).

201. As of 31 May 1998, 146 States have ratified ILO Convention No. 29. See below Ch. 9, section B, paras. 205-218.

202. Art. 25 of Convention No. 29.

203. Reproduced in UNTS, 1957, Vol. CCLXVI, No. 3822, pp. 3-87. As of 31 May 1998, 117 States have ratified this Convention.

204. Art. 1(a), (b) and (d) of the 1956 Convention.

205. As of 31 May 1998, 130 States have ratified ILO Convention No. 105 (although not by Myanmar).

206. By way of illustration see: Constitution of Barbados, art. 6; Constitution of Colombia, art. 17; Constitution of Congo, art. 31; Constitution of El Salvador, art. 9; Constitution of Ethiopia, art. 17; Constitution of Georgia, art. 30; Constitution of Greece, art. 22(3); Constitution of India, art. 23; Constitution of Malaysia, art. 6; Constitution of Malawi, art. 27; Constitution of Mongolia, art. 16; Constitution of Nigeria, art. 33; Constitution of Pakistan, art. 11; Constitution of Rwanda, art. 17; Constitution of the Russian Federation, art. 37(2); Constitution of Suriname, art. 15; Constitution of Turkey, art. 18; Constitution of the United States, art. 13; Constitution of Ukraine, art. 43.

207. Universal instruments: Universal Declaration of Human Rights, 1948, Art. 4. Even though forced labour is not explicitly included, examination of the discussions preceding the adoption of this Article demonstrate that it was considered to be a form of slavery or servitude. See in this respect the summary record of the third session of the Human Rights Commission (UN doc. CES E/CN.4/SR.53); International Covenant on Civil and Political Rights, 1966, Art. 8; the International Convention on the Suppression and Punishment of the Crime of Apartheid, 1973, II(e); Convention on the Rights of the Child, 1989, Arts. 32, 34 and 36; International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990, Art. 11. Regional instruments: Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Art. 4; American Convention on Human Rights, 1969, Art. 6; African Charter on Human and People's Rights, 1981, Art. 5.

208. For an example of such reference to ILO Conventions in the context of the European Convention on Human Rights, see Van der Mussele v. Belgium, 23 Nov. 1983, European Court of Human Rights, Series A, No. 70.

209. For prisoners of war, see the Geneva Convention (III) relative to the treatment of prisoners of war of 12 Aug. 1949, Art. 49-57 and Art. 130. For civilians, see the Geneva Convention (IV) relative to the protection of civilian persons in time of war of 12 Aug. 1949, Art. 40, 51 and 52, as well as the Protocol additional to the Geneva Conventions of 12 Aug. 1949, and relating to the protection of victims of international armed conflicts, Arts. 75 and 76. Finally, the Protocol additional to the Geneva Conventions of 12 Aug. 1949, and relating to the protection of victims of non-international armed conflicts specifically states in Art. 4 that slavery and the slave trade in all their forms are and shall remain prohibited "at any time" against all persons who do not take a direct part or who have ceased to take part in hostilities.

210. Yearbook of the International Law Commission, 1980, Vol. II, Part Two, pp. 30 et seq. Art. 19 of the draft articles reads as follows:

211. Barcelona Traction, Light and Power Company, Limited, Judgement, I.C.J, Reports 1970, p. 33. The Commission on Human Rights considers that slavery and modern manifestations of this phenomenon represent some of the gravest violations of human rights: resolution 1991/58, 6 Mar. 1991, preamble (8); resolution 1994/25, 4 Mar. 1994, preamble (13).

212. Draft code of crimes against the peace and security of mankind adopted by the International Law Commission in 1996: Report of the International Law Commission to the General Assembly on the work of its forty-eighth session (6 May-26 July 1996), UN doc. UNGA Suppl. No. 10 (A/51/10), pp. 9-121. To define slavery, the International Law Commission refers to the 1926 Slavery Convention, the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, the International Covenant on Civil and Political Rights and ILO Convention No. 29. See also International Law Commission Yearbook 1991, Vol. II, Part Two, p. 104.

213. Charter of the Nuremberg Tribunal, Art. 6(c); Charter of the International Military Tribunal for the Far East, Art. 5(c); Statute of the International Criminal Tribunal for the former Yugoslavia, Art. 5(c); and Statute of the International Criminal Tribunal for Rwanda, Art. 3.

214. Report of the International Law Commission to the General Assembly on the work of its forty-sixth session (2 May-22 July 1994), doc. UNGA Suppl. No. 10 (A/49/10), pp. 75-79. On the notion of crimes against humanity, see also La Rosa, Dictionnaire de droit international penal, Termes choisis, Paris, PUF, 1998, pp. 17-26.

215. Art. 18(d) of the draft code, op. cit., note 212, p. 98.

216. Art. 1, para. 1, of the Convention. The full text of the Convention is given in Appendix XIII.

217. For the definition of forced or compulsory labour given in the Convention and the exceptions from its scope see paras. 198 et seq. below.

218. Art. 25 of the Convention.

219. Art. 2, para. 1, of the Convention.

220. ILC, 65th Session, 1979, Report III (Part 4B), General Survey of the reports relating to the Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention 1957 (No. 105), (hereafter 1979 General Survey on the abolition of forced labour), para. 21.

221. ILC, 14th Session, Geneva, 1930, Record of Proceedings, p. 691.

222. ILC, 83rd Session, Geneva, 1996, Report III (Part 4A), Report of the Committee of Experts on the Application of Conventions and Recommendations (hereafter R.C.E., 1996), p. 90.

223. Art. 2, para. 2, of the Convention.

224. Art. 2, para. 2(a).

225. 1979 General Survey on the abolition of forced labour, para. 24.

226. ILC, 14th Session, Geneva, 1930, Report I, Forced labour, pp. 137-140; ILC, 14th Session, Geneva, 1930, Record of Proceedings, Vol. I, p. 301. It may also be noted that the Abolition of Forced Labour Convention, 1957 (No. 105), ratified by 130 States although not by Myanmar, provides in Art. 1(b) for the suppression and non-use of any form of forced or compulsory labour as a means of mobilizing and using labour for purposes of economic development.

227. 1979 General Survey on the abolition of forced labour, para. 33.

228. As an illustration of this principle, the Committee of Experts recalled that Art. 1(a) of the Supplementary Convention of 1956 on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery refers, inter alia, to the status or condition arising from a pledge by a debtor of his personal services if the length and nature of those services are not respectively limited and defined.

229. 1979 General Survey on the abolition of forced labour, para. 68.

230. Art. 2, para. 2(b).

231. See para. 208 above.

232. See para. 212 below.

233. See para. 213 below.

234. 1979 General Survey on the abolition of forced labour, para. 34.

235. Art. 2, para. 2(c).

236. 1979 General Survey on the abolition of forced labour, para. 35.

237. Art. 2, para. 2(e).

238. 1979 General Survey on the abolition of forced labour, para. 36.

239. Ibid. The Committee noted that a similar approach has been adopted in the International Covenant on Civil and Political Rights, Art. 4 of which permits derogations from its provisions in time of public emergency which threatens the life of the nation, to the extent strictly required by the exigencies of the situation.

240. Art. 2, para. 2(e).

241. 1979 General Survey on the abolition of forced labour, para. 37.

242. Other than those specifically excluded from the scope of the Convention (see above, paras. 207 to 213).

243. Art. 1, para. 1 (see above para. 205).

244. The Convention came into force on 1 May 1932, but such action was taken neither in 1937 nor subsequently.

245. ILC, 52nd Session, 1968, Report III (Part IV), Report of the Committee of Experts on the Application of Conventions and Recommendations, Part Three: Forced labour, General Survey on the Reports concerning the Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105); also published as an offprint: Forced labour, extract from the report of the 38th (1968) Session of the Committee of Experts on the Application of Conventions and Recommendations (hereafter 1968 General Survey on forced labour), para. 19(b) and (c).

246. Arts. 7 and 8.

247. Arts. 9 and 10.

248. Arts. 9 to 12.

249. Arts. 13 to 17.

250. Arts. 18 and 19.

251. Arts. 4 and 6.

252. Art. 11.

253. Art. 19.

254. Art. 21.

255. Arts. 7 and 8.

256. ILC, 46th Session, Geneva, 1962, Report III (Part IV), Report of the Committee of Experts on the Application of Conventions and Recommendations, Part Three: Forced labour (hereafter: 1962 General Survey on forced labour), para. 69; R.C.E. 1964, pp. 72, 74 and 79; 1968 General Survey on forced labour, para. 22.

257. R.C.E. 1998, p. 100.

258. See paras. 198 to 204 above.

259. The States are Chin, Kachin, Kayah, Kayin, Mon, Rakhine and Shan; the Divisions are Ayeyarwady, Bago, Magway, Mandalay, Sagaing, Tanintharyi and Yangon. Maps of Myanmar showing these States and Divisions as well as places mentioned in the report can be found in Appendix IX.

260. Sometimes also referred to as "quarters".

261. Government estimate cited in the EIU Country Profile 1997-98, p. 20 ff.; the most recent census was conducted in 1983, at which time the population was 35.7 million.

262. The Government officially recognizes 135 different "national races".

263. For some of these estimates, see Anti-Slavery International, doc. 153 at p. 4746.

264. EIU Country Report, 1st quarter 1998, p. 10.

265. The SLORC consisted of the following members: Senior General Than Shwe (Chairman), General Maung Aye (Vice-Chairman), Lieutenant General Khin Nyunt (Secretary 1), Lieutenant General Tin Oo (Secretary 2), Vice Admiral Maung Maung Khin, Lieutenant General (Air) Tin Tun, Lieutenant General Aung Ye Kyaw, Lieutenant General Phone Myint, Lieutenant General Sein Aung, Lieutenant General Chit Swe, Lieutenant General Kyaw Ba, Lieutenant General Maung Thint, Lieutenant General Myint Aung, Lieutenant General Mya Thin, Lieutenant General Tun Kyi, Lieutenant General Aye Thaung, Lieutenant General Myo Nyunt, Lieutenant General Maung Hla, Lieutenant General Kyaw Min, Major General Soe Myint and Major General Myan Lin (composition as at 20 Dec. 1995).

266. SPDC Notification No. 1/97 (15 Nov. 1997), which formed the SPDC, gave its composition as follows: Senior General Than Shwe (Chairman), General Maung Aye (Vice-Chairman), Lieutenant General Khin Nyunt (Secretary 1), Lieutenant General Tin Oo (Secretary 2), Lieutenant General Win Myint (Secretary 3), Rear Admiral Nyunt Thein (Commander-in-Chief, Navy), Brigadier General Kyaw Than (Commander-in-Chief, Air), Major General Aung Htwe (Commander, Western Command), Major General Ye Myint (Commander, Central Command), Major General Khin Maung Than (Commander, Yangon Command), Major General Kyaw Win (Commander, Northern Command), Major General Thein Sein (Commander, Triangle Area Command), Major General Thura Thiha Thura Sitt Maung (Commander, Coastal Area Command), Brigadier General Thura Shwe Mann (Commander, Southwest Command), Brigadier General Myint Aung (Commander, Southeast Command), Brigadier General Maung Bo (Commander, Eastern Command), Brigadier General Thiha Thura Tin Aung Myint Oo (Commander, Northeast Command), Brigadier General Soe Win (Commander, Northwest Command), Brigadier General Tin Aye (Commander, Southern Command).

267. See State Law and Order Restoration Council Notification No. 1/97, 15 Nov. 1997, as well as State Peace and Development Council Notification Nos. 1/97 and 3/97. These appear in the official record at H01-5652 and H01-5655. See also EIU Country Report, op. cit., note 264, p. 11.

268. The Adaption of Expressions Law (No. 1/97), which came into force on 15 Nov. 1997, effected a replacement of the expression "Law and Order Restoration Council" with the expression "Peace and Development Council" in all statutory instruments, "as expedient".

269. The Military Balance 1988/89, International Institute of Strategic Studies, pp. 159-60.

270. The Military Balance 1997/98, International Institute of Strategic Studies, p. 158.

271. ibid.

272. These battalions are grouped into a number of regiments; however, it is the battalion which is the primary combat unit, while the regiment is a more traditional/symbolic grouping.

273. Each Regional Command and Light Infantry Division has about three Tactical Operations Commands (TOCs), each controlling three to four infantry battalions.

274. The Military Balance 1997/98, International Institute of Strategic Studies, p. 158. See also Andrew Selth, Transforming the Tatmadaw, Australian National University Strategic and Defence Studies Centre, 1996.

275. See Human Rights Watch/Refugees International, doc. 154 at p. 5404.

276. A list of the various spellings for names appearing in this report can be found in Appendix X. While the Commission has endeavoured to be accurate and comprehensive, it was not in the possession of official government information in this regard, despite a request to the Permanent Mission of Myanmar to provide such information. Also in Appendix X can be found information on terms, abbreviations and acronyms used in this report.

277. See EIU Country Profile, 1997-98, op. cit., note 261, p. 10. See also EIU Country Report, op. cit., note 264, pp. 14-15, and Karen Human Rights Group, doc. 174 at p. 8601.

278. See paras. 121 to 123 above.

279. See para. 145 above.

280. See report of the Committee set up to consider the representation made by the ICFTU under article 24 of the ILO Constitution alleging non-observance by Myanmar of the Forced Labour Convention, 1930 (No. 29) (quoted in footnote 84 above), para. 45.

281. Transcript of Daw Aung San Suu Kyi's address to the EU GSP Hearings, doc. 129 at p. 4283.

282. Section 9A of the Towns Act, see para. 240 above.

283. See para. 237 above.

284. Text in doc. H9 at p. 5843.

285. Doc. H10 at p. 5858.

286. Doc. H7 at p. 5802 and doc. H10 at pp. 5870-5871.

287. Doc. H10 at p. 5871.

288. ibid., at p. 5869.

289. See para. 242 above.

290. See the full text of the Order in Appendix XII. The Order was transmitted by the Government of Myanmar as "Annexure I" to its "Progress report on measures taken by Myanmar Government to abolish recourse to forced labour" dated 30 Sep. 1996 and submitted to the Director-General of the ILO.

291. "Progress report on measures taken by Myanmar Government to abolish recourse to forced labour", dated 30 Sep. 1996, para. 15.

292. Full text in UN doc. CES E/CN.4/1996/65, p. 42 (Annex III).

293. Doc. H10 at p. 5870.

294. e.g. para. 112 above.

295. See paras. 237 et seq. above.

296. e.g., under Order No. 1/90 issued by the Rangoon Division LORC on 22 May 1990 and transmitted by the Burma Broadcasting System the same day, "Responsible officials are to report to the Law and Order Restoration Councils concerned regarding people missing from and guests and strangers visiting the 42 townships of Rangoon Division. Failure to report will result in effective action being taken against both the official responsible and the guilty party. This has already been announced in Order No. 1/89 of the Rangoon Division Law and Order Restoration Council on 18 July 1989, the first day of the waning moon of Waso, 1351 Burmese era." See also Article XIX, Burma Beyond the Law, Aug. 1996, p. 56 (appended to the supplementary evidence submitted by the complainants 31 Oct. 1996, but not included in Appendix I to the present report), and statements by witness(es).

297. Quoted from Burma Code, 1943, Vol. I, p. 18.

298. Quoted from United Nations, Human Rights Yearbook 1947, p. 65.

299. ibid.

300. Quoted from Human Rights Watch/Asia, doc. 154 at p. 4918. According to Human Rights Watch/Asia "as a measure to prevent the continued immigration of Indians into Burma, all residents in Burma were required to apply for registration within one year of the 1948 law and were given identity cards. Many Rohingyas registered and were given cards which enabled them to vote during the democratic period between 1950 and 1962. After the military coup in 1962, Rohingyas claim that it became increasingly difficult for the children of recognized citizens to receive citizenship. The law required parents to register their children when they reached the age of ten, so that in many families those born before 1952 will have cards, whereas when their younger siblings applied, they simply never received a response. In 1974, a new constitution was introduced to enshrine the one-party state that had effectively existed since 1962. Those Rohingyas who were not considered citizens under the 1948 law and who could not provide evidence of the families' residence in Burma for two generations prior to 1948 were only able to apply for Foreigners Registration Certificates (FRC). Once again new identity cards were issued, and again, Rohingya interviewees claimed that when their cards were given in for replacement, they never saw them again. When 200,000 Rohingyas fled to Bangladesh in 1976, the Government of Burma claimed that they were all illegal immigrants who fled when they were unable to produce their identification papers during a routine immigration check. Shortly after the last refugees were forced back to Burma in 1980, the Government drafted a new Citizenship Law, which was promulgated in 1982. Both the timing and content of the 1982 law indicated that it was deliberately targeted at the Rohingyas, while also discriminating against other Asian immigrants who had entered the country during the British colonial period. This includes others of south Asian origin, and ethnic Chinese. The total population of immigrants is thought to be around one million people" (in this connection, Human Rights Watch/Asia also refers to Martin Smith: Ethnic groups of Burma, Anti-Slavery International, doc. 153 at p. 4728 ff.

301. Blaustein and Flanz (eds.): Constitutions of the World, New York, 1990, Union of Myanmar, p. 8; see also Human Rights Watch/Asia, doc. 154 at p. 4919. According to Human Rights Watch/Asia, the law defines a naturalized citizen as one who has a parent who was a full citizen and one who was an associate citizen (or qualified for citizenship under the 1948 law). But a naturalized citizen must also "speak well one of the national languages", "be of good character" and "be of sound mind". Only full and naturalized citizens are "entitled to enjoy the rights of a citizen under the law, with the exception from time to time of the rights stipulated by the State".

302. Human Rights Watch/Asia, ibid.

303. See statements of Witnesses 53, 54, 61, 76, 86 and 88.

304. Commission of Inquiry unofficial translation from the Burmese text at its disposal. The title of the Act refers to those employed in the militia, not the militia itself, and thus directly translates as "Militia-members Act".

305. According to a United States Department of Labour Report on Law and Practice in the Union of Burma of 1964 (BLS Report No. 264), "Doctors are now subject to conscription upon graduation from medical school and must serve for an indefinite period according to military needs". The People's Militia Act, as adopted in 1959, does not provide for doctors to serve for an indefinite period, but only within the limits indicated above.

306. That is to say, for work incompatible with Art. 2(2)(a) of the Convention.

307. According to the United States Department of Labor Report of 1964, op. cit., note 305, the Act had not yet been implemented then. See also the more recent indications referred to in para. 389 below.

308. Quoted from Burma Code, 1944, Vol. IV, p. 93.

309. References to pages in the official record of submissions indicate the source of the information and the document number and page number in the official record, separated by a dash. References to the record of the hearings held at the Commission's Second Session indicate the name of the witness and the sitting and page, by Roman and Arabic numerals respectively. References to the testimony of witnesses interviewed by the Commission in the course of its visit to the region indicate the number of the witness; summaries of these testimonies are appended to this report as Appendix VII.

310. See Ch. 3, paras. 28-54.

311. See Ch. 4, paras. 55-76.

312. See Ch. 5, paras. 77-98.

313. Three registries have been compiled: the first lists the documents received following the First Session of the Commission; the second refers to documents that were submitted by witnesses at the time of the hearings held in Geneva in November 1997, and the third lists the documents communicated to the Commission during its visit to the region.

314. In this respect, see Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 98. para. 58, Sir Fitzmaurice, separate opinion. Sir Fitzmaurice's opinion was cited with approval in the case concerning the Application of the Convention on the prevention and punishment of the crime of genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Order of 13 Sep. 1993, I.C.J. Reports 1993, p. 357, separate opinion of Judge Shahabuddeen.

315. Application of the Convention on the prevention and punishment of the crime of genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), ibid. Judge Shahabuddeen also referred himself to: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), I.C.J. Reports 1986, p. 39, para. 59.

316. See paras. 300-350 below.

317. Karen Human Rights Group, 001-0189 to 0190, 001-0479 to 0480; Lin, VII/30; see paras. 351-373 below.

318. See paras. 374-388 below.

319. See paras. 389-393 below.

320. See paras. 394-407 below.

321. See paras. 408-443 below.

322. See paras. 444-457 below.

323. See paras. 458-461 below.

324. Guest, II/24; Liddell, V/34; Lin, VII/47; Heppner, XII/62.

325. Human Rights Watch/Asia, 001-0050.

326. For example, 364,224 people reportedly contributed labour for the Nahtogyi-Mingyan railway in Mandalay Division; 799,447 people for the Aungban-Loikaw railway in Shan and Kayah States; over 44,000 people on a single day for the Ye-Dawei (Tavoy) railway in Mon State and Tanintharyi Division; over 85,000 people for the Yenangyaung-Natmauk road; and 2.3 million people for the dredging of a moat and construction of a ring-road in Mandalay. See doc. H14 for copies of some of these reports from The New Light of Myanmar and its predecessor, the Working People's Daily. An estimate was provided to the Commission based on these published figures that over four million people were forced to work on infrastructure projects over the period from 1992 to 1995. See Steele, VIII/5. In addition, the US Embassy in Yangon estimated the amount of forced labour used on local development projects, based on the value of (uncompensated) "people's contributions" given in economic data published by the Government of Myanmar. The value of these contributions reached a maximum in the 1995/96 fiscal year, at which point they were valued at 186.9 million (current) kyat, which at the official Government day labour wage of 20 kyat per day is equivalent to over 9.3 million work-days. See American Embassy in Rangoon, 101-3905 ff., H13-6009 to 6012; Steele, VIII/5-7 for further discussion.

327. Min Lwin, VI/14; Ka Hsaw Wa, X/9.

328. Mirante, I/48, 59; Heppner, XII/25-28; Heppner, XIII/6.

329. Copies of orders are contained, inter alia, in docs. 1, 15 to 20, 22 to 28, 130, H6, H21, H25 and M50.

330. See orders 5, 7, 8 and 4 respectively in Appendix XI.

331. See order 2 in Appendix XI.

332. See, for example, order 3 in Appendix XI; see also Heppner, XII/35-39.

333. Ka Hsaw Wa, X/9, 43-44; Heppner, XII/38-39; for an example of an order containing bullets, see order 6 in Appendix XI.

334. For the text of an order to provide such information, see order 1 in Appendix XI.

335. Karen Human Rights Group, 032-2428 to 2429; UNHCR, 033-2435; Lin, VII/23-25; Heppner, XII/11-14, 49-51.

336. Karen Human Rights Group, 016-2147 to 2148, 031-2393; Wa Wa, III/7-8; Min Lwin, VI/6; Heppner, XII/31-35.

337. For examples of relocated populations being used for portering, see Karen Human Rights Group, 001-0307, 001-0481 to 0482; see also Guest, II/9-10.

338. Karen Human Rights Group, 001-0028 to 0030, 032-2429; Human Rights Watch/Asia, 065-2965; Mirante, I/47-48; Guest, II/9-10, 20-21; Heppner, XII/46-49, 54.

339. Human Rights Watch/Asia, 154-5406.

340. Karen Human Rights Group, 001-0027 to 0028.

341. See, for example, Karen Human Rights Group, 016-2148; Heppner, XII/17.

342. Karen Human Rights Group, 032-2427 to 2428; Liddell, V/10; Heppner, XII/49-51.

343. Guest II/6; Lin, VII/30-31; Heppner, XIII/20-21.

344. For example, Human Rights Watch/Asia noted a disproportionately large number of Muslims among escaped porters they had interviewed. See Human Rights Watch/Asia, 001-0054.

345. Lin, VII/31-32; Heppner, XIII/21.

346. Karen Human Rights Group, 032-2430; Guest, II/7-9; Heppner, XII/63-64.

347. Karen Human Rights Group, 001-0028, 032-2430; Human Rights Watch/Asia, 001-0051 to 0052; Guest, II/7-9, 14-16; Min Lwin III/21; Liddell, V/29-30; Lin, VII/27-28; Heppner, XII/10-11, 49-51.

348. Australian Council for Overseas Aid, 001-0266; Human Rights Watch/Asia, 001-0050 to 0051, H07-5805 to 5806; Liddell, V/20-22.

 

Examination of the case by the Commission

 


C. Thematic analysis of the forms of labour
and services requisitioned by certain authorities

299. This part of the chapter presents a thematic analysis of the forms of forced labour and services requisitioned by certain authorities in Myanmar. The first four sections deal with work directly related to the military or militia groups (portering, military camp work, other work in support of the military and forced recruitment). The latter four sections deal with work which, although it commonly involves these groups, is of a more general nature (work on agriculture, logging and other production projects, construction and maintenance of roads, railways and bridges, other infrastructure work and general urban work).

(1) Portering

(a) Documentary material

300. Nature and conditions of work. Because of the rugged terrain and lack of roads and other infrastructure in many parts of Myanmar, the army regularly moved troops and supplies on foot.(349) In general, civilian porters were used for this purpose, usually against their will. The regular major offensives which the Tatmadaw conducted against insurgent groups required large quantities of supplies and equipment, and could involve the use of thousands or even tens of thousands of civilian porters for periods of several months.(350) In addition to the use of porters for such major offensives, the Commission was informed that in both conflict and non-conflict areas troops demanded porters on a regular basis for a wide range of duties such as carrying equipment and supplies for routine patrols, carrying provisions to the local military camp, carrying out various duties at military camps or staying at the camp on "stand-by" in case they were needed for some task. Porters were also often sent ahead of soldiers in potential danger situations, to draw enemy fire or in the hope that insurgents would not attack when there was a danger that the porters might be killed. They were also sent ahead of troops in suspected minefields, to detonate mines; many were reportedly killed or injured in this way.(351)

301. Soldiers appeared to generally prefer able-bodied males to work as porters, since they were able to move more quickly and carry heavier loads. In cases where women were taken as porters, they were generally released as soon as men were found to replace them, though this could in certain circumstances be after a considerable period of time.(352)

302. The methods used to procure porters varied. For major operations where large numbers of porters were required, various procurement methods were used. Orders to provide porters emanated from the highest levels of the military command structure.(353) Depending on the number of porters required, the quota might be spread over a number of districts, or even over a number of States and Divisions.(354) The order would be transmitted down the administrative command structure, so that a given township would be required to send a certain number of porters to a certain gathering point on a certain date. In order to fill this quota, orders were sent to each ward and village to provide a particular number of people. In cases where it was difficult to fill the quota in this way, the authorities resorted to rounding up civilians in urban areas, at such places as cinemas, video halls, tea-shops, stations, from buses or trains, or at any other place where there were large gatherings of people, such as at markets, religious festivals, weddings or funerals.(355) In rural areas, troops went into villages and rounded up everyone they could catch. In the absence of a sufficient number of able-bodied men, the authorities would take women, children, the elderly, and persons otherwise unfit for work.(356) The only way to avoid being taken was to pay a substantial sum of money (of the order of several thousand kyat(257)) to the authorities to be exempted from this work. Having released those people who paid such a sum, the authorities would have to round up more people to replace them. It appeared that often the authorities would round up many more people than required, knowing that some would pay money to be released; the amount of money to be paid would depend on the number of "spare" people they had rounded up.(358)

303. Prisoners were also regularly sent from prisons and labour camps across the country to be used by the army in major offensives. They continued to wear prison uniforms and were usually kept separate from the other porters. In certain cases, prisoners were forced to continue working in such conditions beyond their normal release date.(359)

304. In rural areas, orders to provide porters usually gave some general indication of what task the porters were required for: general duties at the army camp, a particular task such as carrying supplies to the camp, or for a military operation. It was then up to the village head to arrange which villagers would go. In addition, villages had to provide a fixed number of porters to each of the army camps in their area on a permanent basis; this would normally be done by villagers in rotating shifts of a few days. The only way to avoid such duties was to hire a replacement or in some cases pay a sum of money to be exempted.

305. Urban populations were normally only required to provide porters at times of major operations, though troops might also round up people in the streets in urban areas for other, more minor tasks. Again, the only way to avoid such duties was to pay a sum of money to be exempted, or hire a replacement.

306. When people were ordered to work as porters either by the village head or local authorities, or directly by the military, no indication was normally given as to the length of the assignment. Even where such an indication was given, it was unlikely to be accurate and was not respected.(360)

307. In addition to rounding people up in an organized way, or ordering local authorities to provide them, military units also captured people at random from villages and rural areas which they passed through. This might be in the context of a major operation, or on a routine patrol through a non-conflict area. Military units constantly needed to "top-up" their supply of porters, to replace those who had been killed, who had escaped, or who were sick or otherwise unable to continue. Taking porters might also be used as a means of extorting money from the community, or as a means of punishment or oppression.(361) The only way to avoid being taken as a porter in such circumstances was to pay a sum of money to be exempted. In cases where people were taken directly by soldiers to work as porters, the family of the person was not notified.(362)

308. When troops arrived in a village, the men would often have already fled, because they feared being arrested or killed by the army, particularly in conflict areas where they might be accused of being rebels. The women usually stayed behind, because they were likely to be treated less violently. In such cases, the women were liable to be taken as porters if the troops could find no men.(363) There were cases where pregnant women and nursing mothers were taken by force to work as porters.(364)

309. Given the wide variation in the amount of portering work required of different villages at different times, it would appear that little attempt was made to keep such requirements within any kind of limit. In some cases, a village household had to provide a porter as often as twice a month, for an indeterminate length of time, in addition to the other demands for labour.(365)

310. The length of portering assignments varied considerably, and depended on a number of factors. Porters taken on routine patrols would usually be replaced at regular intervals of around two weeks by other people from the same village. It was up to the village head to find out where the troops were, and send the replacements. Porters were not normally released until their replacements arrived. Sometimes it was difficult for replacements to be sent, either because the troops were a long distance from the village, or because their whereabouts was unknown. In such cases porters might have to work for considerably longer periods.

311. Porters taken for offensives usually had to work for much longer periods, since it was much more difficult for them to be replaced, and the demand for porters was very high at such times. Given the dangers of disease, injury or abuse at the hands of the soldiers, many porters chose to flee rather than waiting to be released. Escaping porters were routinely shot, and if recaptured were beaten or killed in front of other porters as a warning.(366) Porters who attempted escape in conflict areas appeared to suffer the most severe retaliation.

312. Villagers and townspeople across Myanmar had to pay a variety of fees and taxes including the "porter fee".(367) This was in addition to any money which might have to be paid to avoid doing actual work as a porter, since payment of porter fees did not appear to reduce the demand on a community to provide porters; if a community failed to pay porter fees, however, a likely punishment was an increase in the demand for porters, since people who failed to pay such fees were typically arrested and used as porters. While collection of these fees was ostensibly for the purpose of providing salaries to porters, it appeared that porters were in fact never paid, except when they were hired by another person to go in their place.(368)

313. It could, however, be difficult or at least extremely expensive to hire a replacement for some kinds of portering work, particularly portering in military operations, which lasted for a long time and was particularly dangerous and demanding.(369)

314. The Commission received a great deal of information detailing the situation of porters during their assignments. This information indicated that porters were generally given loads of 30 to 40 kg for men and 20 to 30 kg for women, though reports of porters having to carry up to 50 kg were not uncommon.(370) This could consist of food, ammunition, soldiers' backpacks or other items, usually carried in woven cane or bamboo baskets, with straps across the shoulders and an additional strap across the forehead. When excessive loads were carried for prolonged periods, the straps of the basket and the basket itself dug into the flesh of the shoulders and back, causing serious injuries and sometimes exposing the bone.(371) Injuries to the feet were also common.(372) Women and children were generally given lighter loads, but otherwise the size of the load was generally irrespective of the age, physical fitness or strength of the person in question.(373)

315. Porters were required to carry such loads for long distances, resting only as and when the troops themselves rested. Porters regularly had to carry such loads for a period in excess of 12 hours per day with little rest, over periods of days, weeks or months. It was not uncommon, particularly in offensives, for porters to have to carry their loads continuously for 24 or 36 hours with no sleep.(374) Porters, particularly those who had been rounded up without warning and forced to work, would have few belongings, usually only the clothes they were wearing at the time they were rounded up. They were not provided with any additional clothing, blankets or adequate footwear.

316. Porters were generally fed minimal rations amounting to between a half and one tin of rice per day,(375) sometimes accompanied by a little salt, some chillies, or some watery yellow-pea curry.(376) Many former porters said that this was considerably less than the amount given to the soldiers, and that if the soldiers had better quality food such as meat, the porters did not receive any. Unlike soldiers, porters did not have water-bottles and were usually prevented from drinking from streams as they walked, as the soldiers often claimed this would slow them down.(377) Porters who had asked to drink from soldiers' water bottles had been beaten.(378)

317. Female porters were sometimes raped or otherwise sexually abused by soldiers.(379) Porters who walked too slowly were regularly beaten with sticks, punched, kicked, hit with rifle butts or prodded with bayonets.(380) Porters who were persistently slow, or who were unable to carry their loads because of exhaustion, sickness or injury were often severely beaten and forced to continue, or if this was not possible they were abandoned or killed.(381) The killing of porters who could not continue appeared to be more common in potential conflict areas.(382) In such areas, porters were usually not shot, but were beaten to death, had their throats cut, were thrown from the sides of mountains, were thrown into rivers with their hands tied behind their backs, or were burned alive.(383) Porters who were able to carry their loads at the required pace, who did not slip or fall and who were otherwise obedient were generally not beaten.

318. In addition to those who were executed, many porters died from disease, particularly malaria and gastrointestinal infections. Malaria was particularly endemic in the densely-forested mountainous regions away from Myanmar's central plains where most armed opposition to the government was located. In addition, porters were not provided with any form of prophylaxis and were rarely given medical treatment or medication of any kind.(384)

319. Porters were also exposed to dangerous combat situations.(385) This could include exposure to mines and other kinds of booby-traps, ambushes and major or minor battles. There appeared to be no attempt made by military units using porters to minimize the exposure of porters to such situations. On the contrary, soldiers sometimes forced porters to walk ahead of them in areas where mines, other booby-traps, or ambushes were suspected in order to minimize the exposure of troops to such dangers; if they were carrying ammunition, porters also had to take this to soldiers requiring it during battles.(386) There were also reportedly cases of soldiers forcing porters to exchange clothes with them, in order to draw enemy fire.(387) Many porters were killed or injured in this way.(388) Compensation for death or injury, or medical treatment in the event of injury, appeared to be minimal.(389) In cases of death, the family of the porter was not normally notified.

320. To prevent their escape, porters were guarded at all times. During the day they were often tied together, or to their loads, and they were kept guarded in bunkers or tied together in groups at night.(390) At night, they often had to sleep in the open, with no shelter or blankets provided, even in cold and wet situations. During actual fighting, where they might be able to take advantage of the confusion to escape, porters were often kept in the middle of the soldiers so as to make escape more difficult.(391) Former porters mentioned that it was less feasible to try to escape when they had been sent by the village head in response to an order from the military, because their identities, or at least the identity of their village, was known to the troops, and so they, their families or village could face problems. Porters who had been arrested directly by passing troops could not be identified as easily in this way, and so they were less likely to face problems if they managed to escape.

321. In cases where large numbers of porters were needed and the quota was spread over a wide area, people might be taken considerable distances from their homes. Cases of people being taken from the capital Yangon or even Rakhine State to work as porters in offensives near the Thai border were not uncommon. It was suggested that this might be a deliberate strategy to reduce the chances of porters escaping, since they would be in territory which was unfamiliar to them.(392)

322. If such people did manage to escape, or if they were released after some period, they would find themselves in an unfamiliar area, with no money or possessions. No provision was made for released porters to be transported back to their homes, though in some cases they might be given passes which should allow them to pass through military checkpoints in the area. Such escaped or released porters often became internally displaced, with no opportunity of returning to their homes. They were liable to be arrested as porters by some other military unit as they passed through checkpoints or if they ran into military patrols.(393)

323. Specific examples. The Commission had information relating to the requisition and use of porters in most parts of Myanmar, covering Chin, Kachin, Kayah, Kayin, Mon, Rakhine and Shan States and Ayeyarwady, Bago, Sagaing, Tanintharyi and Yangon Divisions. Those required to work as porters included women, minors, persons over the age of 45, and persons otherwise unfit for work.(394)

324. Use of porters in the eastern and central parts of Myanmar was very common, particularly in large-scale military operations against opposition groups in the region near the eastern border with Thailand. This region will be discussed in the paragraphs which follow.

325. In Shan State, civilians were requisitioned by military units in a number of areas(395) and used as porters.(396) The information related to a period from 1992 to 1997. Civilians were also reportedly forced to act as sentries on the Namhsam to Mongnai railway in 1995.(397)

326. There was a considerable amount of information relating to Kayah State.(398) Porters were requisitioned by various military units from a number of townships,(399) particularly at relocation sites such as Demawso, Shadaw and Ywathit. The information received covered the period from 1992 to 1997, and included copies of several orders from Demawso Township LORC in 1995 requiring villages to provide porters for a military operation.

327. A very large volume of information was received relating to the requisition and use of porters in every part of Kayin State,(400) involving a large number of military units as well as the Democratic Kayin Buddhist Army (DKBA) militia.(401) Porters in Kayin State were also regularly forced to carry out other tasks such as acting as sentries and guides for the troops, a practice discussed further in paragraphs 374-388 below. There was also information that civilians, including women, were forced to act as human minesweepers, often during portering assignments.(402) Porters were also used by soldiers to transport back to their camps goods which had been looted from villages.(403) The information covered a period from 1988 to 1997, and included copies of orders from the authorities requiring villages to provide porters, as well as information from army deserters.

328. In Bago Division, porters were mostly taken by the military in areas near to the border with Kayin State which have a majority Karen population, including Shwegyin and Kyaukkyi townships, various parts of Toungoo district including Toungoo town, and parts of Nyaunglebin district. A number of porters were also rounded up in other parts of the Division.(404) The information related to a period from 1992 to 1997. Some porters, including women, were forced to walk in front of troops as human minesweepers; several were injured or killed by mines. Porters were also used by the military for sentry duty.(405)

329. People were also rounded up in Yangon Division for use as porters in military operations in other parts of the country; Muslims appeared to be particularly targeted. In October 1988 a large number of people were rounded up by the military in the capital Yangon and forced to work as porters in Kayin State.(406)  The same thing happened in 1994 and 1995, for another offensive in the same area.(407)

330. A large volume of information was also received relating to Mon State.(408) Porters were rounded up or used by various military units in a number of different areas.(409) As discussed further below,(410) civilians were also forced to carry out a number of other tasks, usually in the context of portering, such as acting as guides for troops, acting as human minesweepers, or working as sentries; civilians were also used by troops as human shields.(411) The information covered a period from 1990 to 1997, and included copies of orders from the authorities requiring that porters be provided.

331. A very large volume of information was provided to the Commission regarding portering in Tanintharyi Division. Forced portering appeared to be particularly prevalent in Yebyu township,(412) though there was information of people being requisitioned by various military units(413) in most parts of the Division and forced to work as porters.(414) The information covered a period from 1991 to 1997, and included information from army deserters and copies of orders from the authorities requiring provision of porters.

332. In the western part of the country, porters were more commonly used for routine patrols and other tasks of a shorter duration. This was the case in various parts of Chin State,(415) over at least the period 1994 to 1997. The information included interviews with Tatmadaw deserters, as well as a number of orders from the authorities requiring the provision of porters.(416) Porters were also used for sentry duty and as human shields in Chin State. For example, 30 villagers were required to work as sentries guarding six sentry posts in Thantlang.(417) Porters were similarly used for various portering tasks in Kachin State,(418) Sagaing Division(419) and Ayeyarwady Division.(420) This practice is discussed further in paragraphs 374-388 below.

333. In Rakhine State, porters were rounded up and used by both the army and NaSaKa. Porters were rounded up from various areas, including Sittway (Akyab) town and Maungdaw and Buthidaung townships, from both the Rohingya and Rakhine populations.(421) Civilians were also forced to act as sentries, for example at a NaSaKa camp in Maungdaw township in 1992.(422)

(b) Oral testimony

334. Over 186 witnesses stated that they had had experience of portering, either because they themselves were forced to transport food, equipment and ammunitions for the military or because members of their family -- wives, husbands or parents -- had been forced to do so. Testimonies gathered by the Commission tell of events that occurred in Chin, Kayah, Kayin, Mon, Rakhine and Shan States and in Magway, Sagaing, Tanintharyi and Yangon Divisions. They provide ample coverage of the years from 1993 to the present, though a number of witnesses also referred to events which occurred prior to this period.

335. Portering is clearly a common form of forced labour, experienced by most of the witnesses who provided testimony to the Commission. It is also the most arduous and the most degrading. Several witnesses made the point that portering is a further task added to the other forms of labour or services already imposed by the military; consequently, very little time is left to the workers to provide for their own personal and economic needs.(423)

336. In order to clarify the variations of the practice of portering in the different regions of Myanmar, the Commission has grouped together the relevant evidence according to the place where events took place. The Commission in setting out its findings has emphasized the similarities which exist in regions. The Commission will therefore present, in this section, the evidence concerning the practice of portering as carried out in the eastern and central regions of Myanmar, on the one hand, and the evidence concerning the western region, on the other. Because of the nature of the evidence gathered by the Commission, the section on the western region will focus principally on the Rohingya population located mainly in northern Rakhine State.

337. The evidence concerning portering in the eastern and central parts of Myanmar, covers Kayah, Kayin, Mon and Shan States, and the Bago, Tanintharyi and Yangon Divisions. More specifically, for Kayah State, the evidence refers primarily to events during the period between 1990 and 1993, which is directly prior to the mass relocation of a large number of villages to the Mawchi, Ywathit and Shadaw sites. In fact, for reasons of survival, the witnesses very soon left these relocation sites. However, two witnesses, including one deserter from the Tatmadaw who had been stationed in Demawso between 1990 and 1996, stated that the system of portering in that State had not been altered in any way in subsequent months or years.(424)

338. Portering as carried out in the western part of Myanmar covers Chin and Rakhine States as well as Sagaing Division. In the specific instance of Rakhine State, most of the evidence before the Commission refers to the situation of the Rohingyas, although at least one witness of Rakhine origin claimed to have had to perform portering once or twice a year between 1992 and 1993. On these occasions, he was neither paid nor fed and had to carry his own food with him.(425)

339. The portering required of the Rohingyas must be placed in the general context of their situation. The Rohingya witnesses claimed to have left Myanmar because of the burden of forced labour imposed upon them, which prevented them from providing for their own basic needs.(426) Many Rohingya witnesses were requisitioned to do portering more than ten days per month or so many times that they could no longer estimate the exact number.(427) Portering is just one other of the many exactions to which the Rohingyas are subjected, along with, among other things, arbitrary taxation, confiscation or seizure of their possessions and land, the result of which is to deprive them of all means of livelihood.

340. Witnesses gave evidence of two methods used by the military across Myanmar to recruit porters. They may either use the services of the local village head or act on their own. In the former case, the orders are transmitted to the village head(428) with instructions to provide a given number of porters within an often very short time-limit.(429) Village and section heads who were questioned said that they were absolutely obliged to comply with the orders of the military under pain of physical punishment;(430) these threats are sometimes expressed by the attachment of a bullet, a piece of charcoal or a chilli(431) to the order, meaning that violent reprisals may be taken against the village head or his village in the event of non-compliance. One person per family is generally requisitioned. It appears from the evidence that the pressure subsequently put on villagers to meet the requirements of successive requisitions is such that many of them prefer to run away, rather than have to accompany military units on their patrols or operations.(432)

341. The second method for recruiting porters consists of the military forcibly apprehending or seizing the persons they need.(433) They intervene thus as their needs arise, and especially when the order transmitted to the local authority has not been carried out properly, such as when the village head has not provided a sufficient number of porters within the imposed time-limits. The situation of the Rohingyas in the north of Rakhine State is exacerbated by the fact that their services may be required, in an uncoordinated manner, by different authorities, such as the Tatmadaw, the NaSaKa or the police.(434)

342. Men, women and children, some of them only ten or so years old, stated that they have been forced to do portering for the military.(435) Only Rohingya witnesses from the northern Rakhine State stated that portering was done exclusively by males.

343. While men are generally preferred for portering, they sometimes run away and thus avoid having to accompany the military, in which case the troops then take women and children. The evidence further shows that the women are even more vulnerable than the men in this context because, in addition to the portering work, they are subjected to sexual abuse by the military.(436) A refusal to do the portering required is absolutely inconceivable as it is systematically met with physical punishment(437) or fines.(438)

344. The porters have to transport ammunition, equipment and food, making up, in the case of the men, a load weighing over 30 kilos.(439) According to the evidence heard, portering may take various forms. The porters may have to accompany the military when they move from one camp to another, on regular patrols or during military operations. It appears that witnesses were forced to perform all of these forms of portering in eastern Myanmar, especially in Shan, Mon, Kayah and Kayin States. Witnesses heard from northern Rakhine State had mostly to transport ammunition, equipment and rations for the military from one village or camp to another or on patrols.(440) The evidence suggests that in this part of Myanmar territory offensive military operations are significantly fewer in number than in the eastern region of the country, where confrontations were numerous in recent years against Karen, Karenni, Mon(441) and Shan opposition groups.(442) In addition to the portering required for specific troop movements, witnesses have stated that they had to remain on hand with other villagers during a given period to cater for the needs of the military units whose camps were located near their village.(443)

345. In all portering, the porters are forced to march from morning to evening, often not being allowed a moment's rest.(444) One deserter estimated that 20 to 30 porters were required for 30 soldiers on a routine journey.(445) However, the number of porters increases with the scale of the military operation in which the division, battalion or company is taking part.(446)

346. While portering between camps or on military operations or patrols, the porters are often placed ahead of the column, since they act as guides;(447) by putting them in front, the military also use them to detect mines which might explode as they pass.(448) During armed conflict, the porters are used as human shields,(449) many of them getting killed in the process.(450) When caught up in such a confrontation, the porters have to stay with the soldiers to keep them supplied with ammunition, on pain of being shot if they try to escape.(451)

347. The length of time of a portering journey in the eastern part of the country varies and can stretch over several months(452) whereas portering assignments described by Rohingyas generally last less than a week but may be repeated several times a month.(453) The time span which may be indicated at the start is, in fact, of little importance, as the porters are never released until the operation for which they have been requisitioned or arrested is completed, or until replacements have been obtained or apprehended by the military.(454)  Moreover, it is common for a porter who has completed a portering assignment to be seized on his way home by another military unit to carry their equipment.(455)

348. There is ample evidence before the Commission concerning the general conditions in which portering from one camp to another or during military operations or patrols is carried out and the ill-treatment to which the porters are systematically subjected. The persons requisitioned are not paid,(456) and if they are fed, the food is insufficient and of poor quality.(457) The witnesses often mentioned a portion of rotten rice so tiny that it could be held in the hollow of one hand. To prevent the porters from fleeing, they are sometimes chained up and closely guarded.(458) When injured or ill, all the porters questioned claimed never to have been given the necessary medical attention, some of them having even been left behind alone in the jungle.(459)

349. If the porters cannot keep up with the column, or if they show any sign of weakness, the military do not hesitate to beat or violently punch them, causing injuries which can have serious if not fatal consequences.(460) On other occasions, the military did not hesitate to shoot porters(461) because they were too weak, had tried to escape or simply with a view to inspiring fear and terror in the other porters.(462)

350. Several witnesses stated that it was often possible to avoid portering in so far as a certain sum of money was paid to the military or to the authorities. The amounts indicated to the Commission in this respect varied considerably.(463) For example, one witness paid 600 kyat monthly over a period of nearly 15 years so as to avoid having to do portering for the military.(464) Others indicated that it was possible to send a substitute to do the portering in their place.(465)

(2) Military camp work

(a) Documentary material

351. Nature and conditions of work. The Commission received detailed information on various aspects of forced labour related to military camps. The information indicated that when a new military camp was established, the land would often be confiscated from local villages. No compensation would be paid.

352. All the villages in the area would then be required to send at least one person per household to construct the camp. They would have to start by clearing and levelling the land, and would then have to construct camp buildings to the required specifications. They would also have to dig trenches and bunkers and build other fortifications such as fences and defensive bamboo spikes. They would normally have to continue working every day until the construction of the camp was complete. In addition, the villages would usually have to provide all the necessary building materials, including wood, bamboo and sheets of thatch.(466) Following the construction of the camp, these villages would also have to complete repair work at regular intervals, at least once a year (usually after the rainy season when most of the damage occurred).

353. In addition to constructing and repairing the camps, the villages would also have to provide a number of workers on a permanent basis to carry out a number of services at the camps, such as cleaning and maintenance, cooking, collecting water or firewood, washing clothes and acting as messengers. It was these messengers who would normally deliver written orders or summonses from the camp to village heads, in addition to carrying out a variety of other tasks for the army camp or its officers.(467) These workers were often women, sometimes because the camp specifically demanded women, but often because this was generally a less arduous form of forced labour than others such as portering, for which men from the household tended to go. Army camp workers might be able to return home at night, but in certain circumstances this might not be possible, either because they were not permitted to do so, or because of the distance of the village from the army camp. In such cases these workers had to stay at the army camp for a number of days, until replacements arrived from their village, in accordance with the schedule arranged by the village head. In such circumstances, women were particularly at risk of abuse and rape. This did not appear to be uncommon. However, abuses other than sexual abuse of women appeared to be less common than with portering and some other forms of forced labour.(468)

354. Specific examples. The information before the Commission contained details of forced labour being used for the construction, repair and servicing of military camps and other facilities in most parts of the country, particularly border areas and other places with active insurgencies. The Commission received specific information from Chin, Kachin, Kayah, Kayin, Mon, Rakhine and Shan States and Ayeyarwady, Bago, Sagaing and Tanintharyi Divisions.

355. The use of forced labour for the construction, repair and servicing of military installations in the eastern parts of Myanmar was very common, particularly in those areas near the eastern border with Thailand. This region, covering Shan, Kayah, Kayin and Mon States and Bago and Tanintharyi Divisions, will be discussed first in the paragraphs which follow.

356. In Shan State, forced labour was used for the construction, repair and servicing of a number of camps in several different townships,(469) including camps at relocation sites.(470) The information covered a period from 1992 to 1998.(471)

357. A considerable amount of information was provided to the Commission relating to construction, repair and servicing of military camps in Kayah State.(472) Populations which had been forcibly relocated to sites under military control were often used for this work. The information covered the construction and renovation of a number of camps in 1996 and 1997.(473) Other villagers were forced to work at camps as messengers or for carrying out other servicing work.(474)

358. A large volume of information was provided relating to Kayin State and neighbouring parts of Bago Division.(475) Civilians were forced to build, repair or service a large number of military installations over the period from 1992 to 1997.(476) The information included copies of several orders from the authorities requiring villages to provide labour for this work.(477)

359. In Mon State, civilians were forced to carry out work on the construction, repair and servicing of several camps from 1994 to 1997.(478) The information included copies of orders from the authorities requiring labour to be provided for this work.(479)

360. Considerable information was provided relating to military installations in Tanintharyi Division indicated that forced labour was used for the construction, repair and servicing of a large number of these installations(480) in several townships(481) covering a large part of the Division.(482) There appeared to be a particularly large demand for forced labour for these purposes in Yebyu township. The information included a number of copies of orders from the authorities requiring the provision of labour for this work.

361. The Commission received somewhat less information from the western part of Myanmar. It did, however, receive some relevant information, particularly from Rakhine State and Chin State.

362. In Rakhine State, forced labour was used for the construction, repair and servicing of barracks and camps for the NaSaKa in Maungdaw and Buthidaung townships, as well as camps for various battalions(483) in Sittway (Akyab).(484) In various areas including Maungdaw, Buthidaung and Mrauk-U townships the Muslim population was forced by the military to various work for Rakhine and Burmese villagers, including doing cultivation work(485) and constructing houses (so-called "model villages").(486)

363. Forced labour was used on the construction of military camps and other installations in Chin State. These included a police station in April 1996 and sentry posts in June 1996,(487) as well as an army camp in Thantlang. The information included copies of a number of orders from the authorities in 1996 which requested villages in Thantlang township to cut wood and bamboo, and make roofing thatch, for the construction of the army camp.(488)

364. In addition, the Commission received relevant information from a number of other areas. Land was confiscated from villagers in Kachin State for the construction of a military installation.(489) In Ayeyarwady Division, people were forced to construct military camps, including the building of barracks for troops supervising the construction of a road in 1995-96.(490) Forced labour was also used for the construction and servicing of camps in Sagaing Division, including the construction of a camp for a battalion(491) in Monywa township in 1995, as well as continued servicing of the camp until at least 1997, and construction and repair of camps for a number of battalions in Kalaymyo town and other parts of Kalaymyo township over the last few years.(492)

(b) Oral testimony

365. The evidence obtained by the Commission concerning military camps refers to camps located in Chin, Kayah, Kayin, Mon, Rakhine and Shan Sates as well as in Tanintharyi Division. More than two-thirds of the witnesses met(493) claimed to have been obliged to construct, renovate or provide services to military camps or to have seen others performing these tasks. The Commission questioned persons who had directly witnessed the performance of this work, workers who had been forced to take part in these tasks, section or village heads and former soldiers of the Tatmadaw; all these testimonies corroborate each other and illustrate the characteristics and extent of the labour required by the authorities for this purpose. Moreover, most of the testimonies cover a recent period from 1993 to early 1998.

366. The evidence shows that civilians may be forced to work on the construction, renovation or servicing of camps for the various public authorities in Myanmar,(494) for instance the Tatmadaw, the police, the customs authorities as well as the NaSaKa and the Democratic Kayin Buddhist Army (DKBA) in areas where these operate. Requisitions by these various groups are in no way coordinated and may thus overlap each other, which means that the burden of labour for camps is in direct proportion to the number of such camps in the vicinity of a given village. For example, several witnesses claimed to have been obliged to service at least three camps.

367. The military usually recruit labour by using the services of village heads to whom they pass on an order specifying the work to be carried out and the time allowed to find the required number of workers;(495) the village heads have no choice but to comply with the prescribed conditions on pain of fines, if not of physical punishment.(496) In the event that an order is not carried out to the satisfaction of the military, they may intervene directly and forcibly seize the workers that they need.(497)

368. As a rule, one person per family is requisitioned to work on military camps.(498) Men, women and children as young as seven claimed to have been obliged to go to a camp at one time or another to carry out the tasks imposed by the authorities.(499) Children who would otherwise be at school were sometimes sent by their parents to do this work.(500)

369. Villagers would be forced to take part in the construction, renovation and servicing of military camps. Camp construction very often involves confiscation of land by the military.(501) The construction work proper consists of clearing and levelling the ground and in the erection of buildings; workers are also obliged to provide, without compensation, the necessary materials, such as wood, bamboo, plaster and cement.(502) The workers must also attend to the fortification of the camps by digging trenches(503) or installing bamboo spikes,(504) and other defensive traps.(505)

370. There are also many types of renovation and servicing work. The workers may be told to renovate buildings and rebuild fences.(506)  They may also have to provide their own carts to transport equipment or rations,(507) supply the camp with wood, bamboo(508) and water(509) or provide certain services such as cleaning,(510) cooking,(511) acting as messengers(512) or weeding.(513)

371. The length of time that has to be spent at the camps depends on the nature of the work. It would appear from the evidence that assignments concerning camp construction go on for a longer period, whereas those involving servicing are shorter but have to be carried out more frequently according to a rota established among the families of an assigned village or group.

372. As for the general conditions under which these tasks are performed, the workers are not fed,(514) and sometimes even have to bring food to the military.(515) The workers are neither paid(516) nor compensated for the materials that they have had to provide.(517) Some have been subjected to ill-treatment resulting in serious injuries(518) and most are constantly exposed to insults and violence.(519) Abuses of a sexual nature would also appear to have been perpetrated in some cases by the military.(520)

373. The witnesses indicated that it was possible to be exempted from such work in as much as if a certain sum of money was paid to the authorities requiring such work,(521) or a substitute provided.(522) In one case the entire village preferred to pay 26,000 kyat to hire four replacements to carry out the servicing work required by the military in a nearby camp.(523)

(3) Other work in support of the military

(a) Documentary material

374. Nature and conditions of work. In addition to portering and work on military camps, there are other tasks which are required to be performed for the benefit of the military or other authorities. For example, villagers were forced to act as guides for the military in areas which were unfamiliar to the soldiers. This was particularly the case in areas which the military had recently occupied. Since these areas were conflict areas, villagers taken to act as guides also had to serve as hostages for the military: if the column was attacked, the guide would be punished or killed for supposedly leading the column into an ambush. In some cases the whole village could face retaliation in the event of an attack on the column, supposedly for providing information to opposition groups about the movements of the column.

375. Civilians, including women and children, were also used as human shields and minesweepers. While this often occurred in the context of portering, as discussed in paragraphs 300 and 319 above, civilians were also used for this work in contexts other than portering. In potential conflict areas civilians, including women and children, were often forced to sweep roads with tree branches or brooms to detect or detonate mines. It was suggested by certain sources that this was because the military hoped that if insurgents knew this, they would be less likely to plant mines.(524) If villagers did find mines, the village would often face retaliation.(525)

376. Villagers were also forced to act as sentries, particularly at night and in conflict areas, guarding military camps, roads, railways and other important places. They were unarmed, and had to alert soldiers if they saw anyone. If so alerted, the soldiers would often beat the person for supposedly making a false alarm, or failing to detain the suspect; if the site they were guarding was attacked or if mines were laid, those people who were guarding it, or the entire village, could face retaliation. If sentries were caught sleeping during their duty, they were punished, usually by being beaten.(526) Villagers would often also be required to build fences along the sides of certain roads to make it more difficult for opposition groups to lay mines or conduct ambushes.(527)

377. Owners of bullock carts, boats, motor vehicles or other means of transport were also regularly required to place their services at the disposal of the military. They were used for transporting personnel, equipment and supplies for the camp, transporting forced labourers to work sites, and in relation to income-generation projects by the military.(528)

378. Specific examples. Documentary material provided to the Commission gave information of other kinds of work for the military, particularly minesweeping and sentry duty. There is information in this regard from Chin, Kayah, Kayin, Mon and Shan States and Bago, Sagaing and Tanintharyi Divisions. Reference should also be made to the section on portering(529) for more details of minesweeping and other work required in the context of portering.

379. The use of civilians as minesweepers, particularly to "sweep" roads for mines using some heavy object, appeared to be common in potential conflict areas, including Kayin State,(530) those parts of Bago Division near to the border with Kayin State,(531) and Mon State.(532) The use of civilians as guides, human shields or hostages also occurred in these areas, particularly in parts recently occupied by the military from opposition groups.(533) The information covered a period from 1992 to 1997.

380. Sentry duty was also common in many parts of Myanmar, often along newly-constructed roads and railways. There was information in this regard from the eastern part of the country in Shan State,(534) Kayah State,(535) Kayin State,(536) Mon State(537) and Tanintharyi Division,(538) and from the western part in Sagaing Division(539) and Chin State.(540) The information covered a period from 1994 to 1997.

381. The requisitioning of vehicles for military use was common in most of the country, and demands for vehicles often accompanied demands for porters or workers at army camps. The Commission received specific information in this regard from Kayin State,(541) Bago Division,(542) and Sagaing Division.(543) The information covered a period from 1994 to 1996.

(b) Oral testimony

382. Twenty-two witnesses(544) from Chin, Kayah, Kayin, Mon, Rakhine and Shan States as well as Bago and Tanintharyi Divisions provided information on the additional tasks which had to be carried out for the benefit of the military and other public forces. The relevant evidence covers the period from 1986 to early 1998, though most of it refers to events that occurred between 1996 and 1998.

383. Persons from all parts of the country have claimed that they or others had to stand guard along roads(545) or railways,(546) at the entrance to villages(547) or in the vicinity of military camps, which they had often previously had to construct.(548) Others had to stand watch at specific places so as to be able to inform the military of suspicious movements from the direction of the sea or the neighbouring border.(549)

384. The military generally use the services of village heads to transmit the order specifying the nature of the sentry duty to be performed.(550) As a rule, one person per family is sent,(551) irrespective of whether they are men, women or children.(552)

385. The persons on sentry duty work in groups(553) during a period which may range from one to seven days.(554) They must remain permanently at their look-out posts, spend the night there and divide up the guard so as to have a sentry on duty night and day. Falling asleep may be punished by physical punishment,(555) or even reprisals against the entire village.(556)

386. Sentry duty sometimes involves building fences along the roadside or sweeping the roads, morning and evening, to check that no mines have been laid.(557) This mine-detection is effected by using a stick or a log attached to a cart and may also be demanded in the vicinity of villages and military camps.(558) This is dangerous work; witnesses claimed to have seen people injured or even killed by exploding mines.(559)

387. Persons performing guard duty are neither paid(560) nor fed(561) and are regularly subjected to insults.(562) It is, however, possible to avoid performing this work by paying the military who require it(563) or by sending a substitute.(564)

388. Finally, other witnesses claimed that they had to keep carts, tractors, rickshaws, canoes and boats on stand-by to meet the transport needs of the military.(565)

(4) Forced recruitment

(a) Documentary material

389. Information provided to the Commission indicated that there was regular forced recruitment throughout Myanmar, including of minors, into the Tatmadaw and various militia groups. It appeared that this did not occur pursuant to any compulsory military service laws,(566) but was essentially arbitrary.(567)

390. In cases where a certain number of recruits was demanded, it was common for the village or ward authorities to hold a "lottery" to choose those who had to undertake military service. Those chosen were then forcibly conscripted and commonly included minors.(568) Less direct methods of coercion were also used: in many areas, families of soldiers were exempt from forced labour, arbitrary taxation or forced relocation.(569)

391. Information was received regarding forced conscription into the Tatmadaw in various parts of the country. In Tanintharyi Division the Coastal Area Command reportedly required each battalion to obtain 5 recruits per month in 1996 and 3 recruits per month in 1997, with a fine of 25,000 kyat for each recruit less than the quota, and a reward of the same amount for each recruit in excess of the quota. Because of this, many men and teenage boys in the region were recruited against their will, and many others fled to avoid conscription.(570) In a document provided to the Commission, a 22-year-old Karen man from Ayeyarwady Division described how government soldiers came to his village at least once a year and demanded 10 recruits for the army. The only way for a household to ensure that it would not be forced to provide a recruit was to pay 200 kyat.(571) There was similar information in regard to other parts of the country, including Bago Division, Kayah State, Kayin State, Rakhine State, Sagaing Division and Shan State.(572)

392. The Commission also received information relating to forced conscription into various militia groups. A number of orders from the authorities requiring villages to provide recruits for both full-time and reserve service in the People's Militia in Chin State were received by the Commission.(573) These orders were dated 1995 and 1996. One of the orders threatened that "decisive action" would be taken against villages failing to provide the required number of recruits. From the text of one of the orders it appeared that villages were also required to pay for the cost of food for the recruits during their military training.(574) In 1996 and 1997, 30 villages in Dawei (Tavoy) and Thayetchaung townships were also required to provide recruits to the People's Militia, and were threatened with relocation if they failed to do so.(575) Villages in Hlaingbwe and Myawady townships in Kayin State were forced by the DKBA since at least 1995 to provide DKBA recruits, under threat of fines or death.(576)

(b) Oral testimony

393. Eight witnesses who deserted the Tatmadaw between the early 1980s and 1996 gave testimony before the Commission.(577) None of them gave specific evidence on the way they were recruited, save for one who specified that when joining the army he had to sign for at least ten years.(578) If found, deserters are usually put in jail or, if they deserted with arms, executed.(579) The Commission is not in possession of oral evidence which would confirm the documentary material submitted to it with regard to the conditions of recruitment into the Tatmadaw and various militia groups.

Part IV (cont.)

 


349. See para. 19 of the response of the Government of Myanmar to the memorandum of the Special Rapporteur, transmitted to the Special Rapporteur in a note verbale dated 4 Oct. 1995 by the Permanent Mission of Myanmar to the United Nations Office at Geneva, UN doc. UNGA A/50/568 (16 Oct. 1995), p. 26.

350. Human Rights Watch/Asia, 001-0057, 001-0059; Mon Information Service, M57-7432; Heppner, XII/14; Human Rights Watch/Asia, Abuses Linked to the Fall of Manerplaw, Mar. 1995, p. 7.

351. Karen Human Rights Group, 001-1462, 016-2149, 032-2422; Min Lwin, III/16; Liddell, V/35-36; Lin, VII/39; Heppner, XII/18-19.

352. Human Rights Watch/Asia, Abuses Linked to the Fall of Manerplaw, op. cit., note 350, p. 7.

353. Heppner, XII/27-28.

354. Mon Information Service, M57-7432; Heppner, XII/15.

355. Karen Human Rights Group, 016-2147; Human Rights Watch/Asia, 065-2572 to 2573; Lin, VII/54; Heppner, XII/25.

356. Lin, VII/26; Heppner, XII/28.

357. This is a substantial sum for most people in Myanmar. For an indication of purchasing power, see under "kyat" in Appendix X.

358. Mon Information Service, M57-7432; Karen Human Rights Group, 032-2422.

359. Karen Human Rights Group, 016-2148, 032-2429; Liddell, V/23.

360. Karen Human Rights Group, 001-1474; Guest, II/24.

361. Amnesty International, 088-3588.

362. Heppner, XII/15-16.

363. Karen Human Rights Group, 001-0028; Guest, II/12; Ka Hsaw Wa, X/13.

364. Karen Human Rights Group, 001-1461 to 1462.

365. Guest, II/12-13.

366. Guest, II/10-11; Ka Hsaw Wa, X/15.

367. See paras. 294-295 above.

368. Heppner, XII/64.

369. In one of the documents submitted to the Commission it was noted that hired porters perhaps face less abuse from soldiers, since they were accustomed to the work and, being paid, they were in a position to bribe soldiers to get better food or treatment. See Karen Human Rights Group, 016-2149.

370. Karen Human Rights Group, 016-2147; Min Lwin, III/16; Heppner, XII/16.

371. See photos at 155-5474, 156-5517; see also Karen Human Rights Group, 032-2422; Heppner, XIII/5.

372. Lin, VII/52-53.

373. In one case an epileptic woman was taken as a porter, even though her sister explained this to the soldiers, and she died after the first day (Liddell, V/11); in another case, an elderly Mon man was taken as a porter and forced to carry heavy loads of ammunition, resulting in serious injuries (Lin, VII/26). See also Karen Human Rights Group, 001-1461 to 1462, 016-2149.

374. Human Rights Watch/Asia, Abuses Linked to the Fall of Manerplaw, op. cit., note 350, p. 9.

375. "Tin" refers to condensed milk tins of a standard size, which are the usual measure for small quantities of dry goods in Myanmar. One tin is equal to approximately 300 grams of uncooked rice. By contrast, the World Food Programme reportedly estimated that a family of six to eight persons required 6 kg of rice per day, or up to 1 kg per person (see Human Rights Watch/Asia, H07-5806).

376. Liddell, V/8.

377. Karen Human Rights Group, 016-2147; Heppner, XII/16; Human Rights Watch/Asia, Abuses Linked to the Fall of Manerplaw, op. cit., note 350, p. 9.

378. Liddell, V/8.

379. Human Rights Watch/Asia, 001-0059; Liddell, V/6-7; Ka Hsaw Wa, X/11-12.

380. Human Rights Watch/Asia, 001-0057; Guest, II/11; Min Lwin, III/18-19; Liddell, V/8; Heppner, XII/16; Human Rights Watch/Asia, Abuses Linked to the Fall of Manerplaw, op. cit., note 350, pp. 9-10.

381. Human Rights Watch/Asia, 001-0060; Guest, II/10; Ka Hsaw Wa, X/14-15; Heppner, XII/16-18; Human Rights Watch/Asia, Abuses Linked to the Fall of Manerplaw, ibid., pp. 9-11.

382. This might be done to prevent them from providing intelligence to hostile forces. Karen Human Rights Group, 032-2422; Heppner, XII/16.

383. Karen Human Rights Group, 032-2422; Heppner, XII/16.

384. Guest, II/24; Liddell, V/8; Lin, VII/41-42.

385. Human Rights Watch/Asia, 001-0059, 065-2971; Karen Human Rights Group, 001-1462; Ka Hsaw Wa, X/17.

386. Min Lwin, III/16.

387. Heppner, XII/18-19.

388. Human Rights Watch/Asia, Abuses Linked to the Fall of Manerplaw, op. cit., note 350, pp. 6-7, 9.

389. Human Rights Watch/Asia, Abuses Linked to the Fall of Manerplaw, ibid., p. 10.

390. Human Rights Watch/Asia, Abuses Linked to the Fall of Manerplaw, ibid., pp. 8-9.

391. Min Lwin, III/16.

392. Karen Human Rights Group, 016-2147; Ka Hsaw Wa, X/16.

393. Karen Human Rights Group, 001-1469, 032-2422; Heppner, XII/17.

394. See, for example, Liddell, V/11-12; Heppner, XII/17-18; Amnesty International, 001-0505, 090-3653; Images Asia, 001-0216; Karen Human Rights Group, 001-0187, 001-0189, 001-0196 to 0197, 001-0905, 001-0921.

395. The areas mentioned covered the following townships: Hsi Hseng (by LIB 424), Kengtung, Kunhing, Laikha (by LIB 515), Langkho, Mongnai (by LIB 520), Mong Hsat, Mong Yai (by Light Infantry Regiment 31), Namhsam (by LIB 518), and Tachilek.

396. Human Rights Watch/Asia, 001-0059 to 60; Shan Human Rights Foundation, 001-0176, 001-0369, 001-0417, 144-4536 to 4537, 145-4581 to 4583; Amnesty International, 001-0505 to 0506, 091-3693, 099-3892, 168-8397 to 8398.

397. S.H.A.N/Shan Human Rights Foundation, 001-0170.

398. Karen Human Rights Group, 001-0305 to 0306, 001-0320, 001-0324, 001-1970 to 1972, 154-5095; Amnesty International, 090-3660, 099-3891 to 3892, 099-3896; Images Asia, M37-7039.

399. Areas mentioned included Loikaw town (by IB 54), Demawso township, including Demawso relocation camp (by battalions 102 and 249), Ywathit relocation site, Shadaw township (by LIB 336), Mawchi township, and Pasaung township.

400. Karen Human Rights Group, 001-0186 to 0187, 001-0189, 001-0191 to 0197, 001-0310, 001-0318 to 0319, 001-0325, 001-0327, 001-0364 to 0365, 001-0367, 001-0376, 001-0388, 001-0449, 001-0481, 001-0485, 001-0552, 001-0593, 001-0607 to 0608, 001-0620, 001-0762 to 0764, 001-0905, 001-0921, 001-1342, 001-1855, 001-1868 to 1869, 015-2127, 017-2153, 027-2278 to 2279, 027-2294, 031-2393 to 2394, 031-2396, 031-2399, 031-2403 to 2404, 031-2409 to 2410, 154-4935, 154-5188, 154-5196, 154-5220, 154-5228, 154-5232, H21-6350 to 6354, H23-6388, H23-6391, H23-6396, M50-7354 to 7355, M50-7358 to 7360; Human Rights Watch/Asia, 001-0057, 150-4692, H07-5800; Amnesty International, 001-0767 to 0770, 001-0774, 087-3580, 088-3589 to 3591, 090-3653, 092-3719 to 3720; Images Asia, 125-4031, 125-4034, 125-4036, 125-4038; HRDU, M34-6952.

401. The following military units were mentioned specifically: IB 1, LIB 4, IB 5, LIB 8, 11 Division, LIB 12, LIB 13, IB 19, LIB 22, 22 Division, IB 23, Battalion 36, 44 Division, IB 51, IB 75, LIB 76, 77 Division, Battalion 77, IB 84, LIB 88, IB 97, 99 Division, Battalion 104, IB 106, LIB 113, LIB 116, LIB 119, LIB 207, Battalion 230, IB 231, Battalion 248, Battalion 249, IB 258, Battalion 301, IB 310, IB 317, LIB 339, LIB 340, LIB 355, Battalion 356, Battalion 357, LIB 420, LIB 434, Battalion 531, LIB 545, LIB 549, and the DKBA.

402. Karen Human Rights Group, 001-0189, 001-0319, 001-0376, 001-0449, 001-0619 to 0620, 031-2401, 031-2403 to 2405; Amnesty International, 088-3592; Images Asia, 125-4038; Human Rights Watch/Asia, 150-4692.

403. Karen Human Rights Group, 154-5188.

404. There is information that this happened in Letpadan township and in Ouk-twin town.

405. Karen Human Rights Group, 001-0179 to 0182, 001-0305 to 0308, 001-0338, 001-0340 to 0341, 001-0399, 001-0707 to 0708, 001-0924 to 0927, 073-3357 to 3359, M49-7311 to 7314; Images Asia, 001-0201 to 0226.

406. Amnesty International, 087-3579.

407. Human Rights Watch/Asia, 001-0054, 065-2973; Amnesty International, 001-0769; Images Asia, 001-0880. In 1994, a Muslim man was also captured by soldiers on the Yangon to Mottama (Martaban) train and forced to be a porter in the same offensive. See Human Rights Watch/Asia, 065-2972.

408. Karen Human Rights Group, 001-0299, 001-0759 to 0760, 001-0763, 001-1068, 001-1341, 001-1609 to 1612, 154-5220; Amnesty International, 001-0792, 088-3589, 090-3653, 094-3786, 099-3890; Mon Information Service, 001-1279, 001-1284, 139-4445; Human Rights Watch/Asia, 065-2972.

409. The information specifically referred to the following areas: Kyaikto township (by LIB 1 and LIB 207), Mawlamyine (Moulmein) town (by Battalion 104 and Regiment 80), Mottama (Martaban) town, Mudon township (by IB 62 and LIB 209), Thaton town, and Ye township (by IB 61 and LIB 406).

410. See paras. 374-388.

411. Karen Human Rights Group, 001-0304, 001-0312; Amnesty International, 093-3751.

412. HRDU, 001-0150; Karen Human Rights Group, 001-0176, 001-0412 to 0413, 001-1036, 001-1051, 001-1054 to 1057, 001-1072, 001-1368 to 1372, 029-2370; Amnesty International, 001-0500, 001-0791 to 0792; Images Asia, 001-1184; Mon Information Service, 001-1276 to 1277, 001-1386, 043-2651, 139-4443 to 4445, 139-4449 to 4450; Human Rights Watch/Asia, 150-4688 to 4689; affidavit of John Doe B, H20-6297.

413. The following areas and military units were specifically mentioned: Yebyu township, including for 33 Division, IB 104, LIB 273, Battalion 403, LIB 404, LIB 405, LIB 406, LIB 407, LIB 408, LIB 409, LIB 410 and LIB 431; Dawei (Tavoy) township, including for LIB 17, Battalion 25, 33 Division, 66 Division, IB 80 and Battalion 402; Thayetchaung township, including for 33 Division, LIB 403, LIB 404, Battalion 405 and IB 25; Launglon township, including for 33 Division; Palaw township, including for Battalion 280 and Battalion 101; and Bokpyin township.

414. HRDU, 001-0150, M34-6950, M34-6958 to 6959; Karen Human Rights Group, 001-0176, 001-0412 to 4113, 001-0434, 001-0448, 001-1032, 001-1036 to 1045, 001-1051, 001-1054 to 1057, 001-1072, 001-1129, 001-1368 to 1372, 029-2370, 154-5112, H24-6442, H24-6476, H24-6485; Amnesty International, 001-0500, 001-0791 to 0792; Images Asia, 001-1184; Mon Information Service, 001-1276 to 1277, 001-1386, 043-2651, 139-4442 to 4445, 139-4449 to 4450, M56-7421 to 7422; Human Rights Watch/Asia, 150-4688 to 4689, 150-4691, 154-5310; FTUB, 164-7766 to 7767; affidavit of John Doe B, H20-6297.

415. The information covered the townships of Thantlang, Tiddim, Falam, Matupi and Paletwa.

416. Karen Human Rights Group, 028-2341, 154-5134 to 5136, 154-5152 to 5156; Images Asia, 167-8308; Interview, M12-6812 to 6813.

417. Karen Human Rights Group, 154-5138. This work was done for LIB 266.

418. Amnesty International, 090-3653.

419. Karen Human Rights Group, 001-0563 to 0564.

420. Karen Human Rights Group, 001-0535, 001-0692; Amnesty International, 001-0770 to 0772.

421. Amnesty International, 089-3624a, 089-3624b, 089-3608 to 3616; Karen Human Rights Group, 001-0557 to 0558; Human Rights Watch/Asia, 001-0711, 001-0716, 107-3940 to 3941, 118-3995, 154-4923 to 4924, H07-5800; UNHCR, 033-2435 to 2436; Zunetta Liddell, 114-3986 to 3987.

422. Human Rights Watch/Asia, 001-0711; UNHCR, 033-2435. See also the discussion on this practice in paras. 374-388 below.

423. See statements of Witnesses 151, 168, 175 and 200. Witness 175 claimed that, during certain months of the year, neither she nor her husband had a single moment to attend to their own activities.

424. See statements of Witnesses 93 and 98.

425. See statement of Witness 8.

426. See statements of Witnesses 29, 31, 33, 39, 48, 59, 63 and 85.

427. See statements of Witnesses 18, 20, 48, 63, 66, 72, 121 and 171.

428. See statements of Witnesses 93, 98, 100, 101, 108, 109, 112, 113, 121, 132, 163, 174, 177, 187, 210 and 216.

429. The time-limit may be very short; some witnesses stated that the village head had to find the necessary porters on that very day: see statements of Witnesses 155 and 180.

430. See statements of Witnesses 113, 173 and 175.

431. See statement of Witness 166. Some village or section heads are said to have been tortured for not having carried out the orders properly. In this regard, see statements of witnesses 220-228.

432. See statements of Witnesses 113, 120, 153, 164 and 220-228.

433. See statements of Witnesses 93, 94, 98, 112, 125, 132, 135, 155, 169, 178, 179, 188, 201, 210 and 216. Direct arrests have even been carried out in Yangon: see statement of Witness 170.

434. See, in particular, statements of Witnesses 49 and 59.

435. For the eastern part, see statements of Witnesses 5, 102, 106-108, 112, 113 and 166. Even pregnant or elderly women may be requisitioned. See statements of Witnesses 174 and 176. For Chin State, testimonies cover the regions near Thantlang and Paletwa as well as Arakan hills (Arakan Yoma).

436. See statements of Witnesses 119, 125, 169, 176 and 200.

437. On two occasions, Witness 119 saw individuals shot dead for having refused to do the required portering.

438. Witness 109 stated that a refusal could result in a fine of 3,000 kyat.

439. See statements of Witnesses 93, 98, 100, 102, 105, 106, 108, 109, 112-114, 119, 131, 132, 135, 145, 160, 165, 169, 175, 176, 184, 187, 192, 193, 195, 204, 206, 210 and 245.

440. See statements of Witnesses 9, 10, 19, 44 and 52.

441. There have been no major hostilities in Mon State since the New Mon State Party (NMSP) signed a cease-fire with the Government of Myanmar in June 1995.

442. It is not unusual for porters to have to accompany the military on armed offensives: see statement of Witness 32 who accompanied soldiers on a military operation in 1991, and statement of Witness 43 who was a porter on the Thai border during an operation against the Karen National Union (KNU). Finally Witness 33 claimed to have accompanied the military in an operation against the Rohingya Solidarity Organization (RSO) in April 1997.

443. See statement of Witness 6, and statement of Witness 208 about a village where, from March 1997, three porters had to be permanently available for the military.

444. See statement of Witness 201.

445. See statement of Witness 93.

446. See statement of Witness 5 for the extensive military operation in Shan State.

447. See statement of Witness 118.

448. See statements of Witnesses 5, 93, 116, 124 and 151. The villagers may also be called up to detect mines in the vicinity of the villages or military camps: see statement of Witness 183.

449. See statements of Witnesses 93, 105, 132, 204 and 210. Witness 155 has explained that the entire village, including the children, is sometimes used as a shield.

450. Notably in Chin and Karen States. See, in particular, the statement of Witness 125.

451. The testimonies concern armed conflicts with the Karen, Mon and Shan forces. See, in particular, statements of Witnesses 108, 112, 184 and 245.

452. See statements of Witnesses 98, 105, 106, 112, 114, 117, 119, 121, 131 and 135. Consult the statement of Witness 132, whose assignment lasted for 94 days and was immediately followed by another assignment of 2 months.

453. See statements of Witnesses 19, 20, 26, 31, 44 and 48.

454. See statements of Witnesses 93, 113 and 168.

455. See statement of Witness 168.

456. See statements of Witnesses 26, 44, 48, 63, 80, 98, 100, 102, 105, 107, 113, 117, 119, 121, 132, 160, 162, 168 and 184. Witness 31 claimed to have received 15 kyat per portering assignment.

457. See statements of Witnesses 6, 7, 46, 48, 102, 106-108, 117-119, 121, 132, 153, 154, 160, 165 and 171.

458. See statement of Witness 193.

459. See statements of Witnesses 98, 117 and 168. Witness 241 claimed that his brother had died while portering as a result of complications caused by an infectious disease.

460. When questioned on this subject, all the witnesses said that they had had direct experience of such acts, perpetrated by the military for no apparent reason: see statements of Witnesses 6, 7, 19, 21, 26, 48, 63, 66, 80, 93, 98, 100, 102, 105-107, 112-114, 117, 118, 121, 124-126, 131, 132, 135, 137, 138, 146, 151, 155, 160, 168, 171-173, 176, 181, 194, 200, 204-207, 210 and 245. One deserter claimed to have personally beaten porters on the orders of his superior. Witness 44 mentioned a practice involving use of a red-hot iron.

461. See statement of Witness 236, who claimed to have seen about sixty porters shot dead by the military because they were exhausted, to week to continue, or simply wanted to rest for a moment. See also the statements of Witnesses 169, 200, 222 and 225. The situation of prisoners who have to do portering work is even more disgraceful in this respect: see statement of Witness 96.

462. See statements of Witnesses 108, 109, 118, 145, 168, 185 and 236.

463. The amounts mentioned vary from 300 to 10,000 kyat. See statements of Witnesses 96, 112 (3,000 kyat), 119 (5,000 kyat), 121 (400 to 500 kyat), 125 (5,000 kyat), 138 (3,000 kyat), 154 (2,000 kyat), 158 (450 kyat), 169 (200 kyat), 171 (500 kyat), 180 (1,300 kyat for one week), 184 (500 kyat), 187 (200 to 300 kyat), 209 (2,000 kyat for three days' portering), 229 (5,000 to 10,000 kyat) and 236.

464. Witness 236 had in fact been subjected to beatings during a portering assignment in 1985 at Three Pagodas Pass (Kayin State) and did not wish to repeat this traumatic experience.

465. See statements of Witnesses 100, 113, 159, 200 and 210.

466. Karen Human Rights Group, 032-2423; Lin, VII/42-43.

467. Karen Human Rights Group, 001-0027, 032-2423; Human Rights Watch/Asia, 065-2978; Min Lwin, VI/14; Ka Hsaw Wa, X/9.

468. Karen Human Rights Group, 001-1462, 016-2147, 032-2423.

469. The following camps were mentioned: a camp for LIB 360 in Mongping township in 1992; for Battalion 64 in Mongkaing township in 1994; for Battalion 518 in Kunhing township in 1996 and other new bases at Kunhing in 1997; a military camp in Namhsam township in 1997; and a military camp in Laikha town in 1997 and 1998.

470. For example, digging bunkers for a military camp at Wan Lao relocation site in Kunhing township.

471. Shan Human Rights Foundation, 001-0334, 001-0383, 143-4533, 145-4579, 147-4621, M34-6964; Karen Human Rights Group, 001-0665; Amnesty International, 168-8399 to 8400.

472. Amnesty International, 099-3895 to 3896; Karen Human Rights Group, 154-5083, 154-5089 to 5092, 154-5095.

473. The following camps were specifically mentioned: an army camp at Shadaw, a camp for Battalion 429 at Tee Po Klo in Demawso township, an army camp at Daw Tama Gyi in Demawso township, an army camp at the Mawchi relocation site in Mawchi township, an army camp at Mar Kraw She relocation site in Pruso township, and an army camp at Ywathit relocation site.

474. Karen Human Rights Group, 001-0586, 001-0592, 154-5083, 154-5090, 154-5095; Human Rights Watch/Asia, 065-2978.

475. Karen Human Rights Group, 001-0181, 001-0189 to 0197, 001-0302, 001-0307, 001-0310, 001-0318 to 0319, 001-0364, 001-0480, 001-0488, 001-0586, 001-0593, 001-0603, 001-0632, 001-0637, 001-0763 to 0764, 001-0904, 001-1922 to 1926, 001-1988 to 1990, 031-2393, 031-2395 to 2396, 154-5190, 154-5226, 154-5254 to 5260, 154-5268, H23-6394, M50-7360; Human Rights Watch/Asia, 065-2978; Amnesty International, 093-3748, 099-3896; Images Asia, 001-0209, 001-0220, 125-4024, 125-4036, 125-4038; Min Lwin, H06-5777 to 5782, H06-5785 to 5790.

476. The following military installations were specifically mentioned. In Kayin State: a camp for 99 Division in Hpa-an township in 1993; a camp for LIB 9 near the Thai border in 1994; an LIB 12 camp in Hpa-an district in 1997; a camp at Kadaingti in Papun district in 1995 and 1996; a camp for LIB 547 in Nabu village in Kawkareik township in 1995 and again in 1997; a camp for Battalion 104 at Maw Kee in Dooplaya district in 1995; Paw Yin Pyu army camp in Hlaingbwe township in 1995; a camp near Painkyone used by Battalion 339, Battalion 338 and 99 Division; a camp for LIB 310 in Kawkareik township in 1996; IB 231's Ta Mine Gone camp in Kawkareik township in 1996; a camp for IB 62 in Kawkareik township in 1996; a camp for LIB 549 in Kawkareik township in 1997; camps for Battalion 36 in the Painkyone area of Hlaingbwe township from 1993 to 1997; a camp for LIB 340 near Dee Taw Kee in Papun district in 1995 and 1996; a camp at Tee Per near Painkyone in Hlaingbwe township in 1996; a camp for a company of Battalion 310 in Kya-in village in Kawkareik township in 1995; bunkers for Tatmadaw and DKBA units in Kyat Kwa village in Kawkareik township; a camp of the 202 Tactical Operational Command in the Kyeikdon area of Kya In Seik Gyi township in 1997; bunkers for troops in Paglawni village near Kyeikdon in Kya In Seik Gyi township; outposts at Azin (Saw Hta) and MaeTha Raw Hta in Dooplaya district in 1996 and 1997; an army camp near Kyunchaung village in southern Dooplaya district in 1997; an army camp in Kyone Yaw village in southern Dooplaya district in 1997; a DKBA camp at Myaing Gyi Ngu (Khaw Taw) in 1995 and 1996; a DKBA camp in the Painkyone area of Hlaingbwe township in 1997; and several other army camps between Papun and Kyauknyat over the period 1992 to 1995. In Bago Division: in Busakee township, for IB 57 in Shwegyin township, for IB 26 in Tantabin township and for IB 60 in Kyaukkyi township. Villagers were also forced to do construction and other work for an army camp at Ye Tho Gyi in Toungoo district for IB 48 and LIB 354, and to dig an eight-mile ditch at Yan Myo Aung army compound in Kyaukkyi township in 1994.

477. Villagers in Papun district in 1996 were also forced to build houses for the families of soldiers who had died. See Karen Human Rights Group, 001-0480.

478. Specific mention was made of the following camps: a camp for Battalion 108 in Ye township in 1994, a camp for IB 93 in Bilin township in 1995, a camp near Yah Pu village in Ye township in 1996, and a camp for IB 31 in Thanbyuzayat township in 1997.

479. Karen Human Rights Group, 001-0176, 001-0394, 001-1341.

480. The following military installations were specifically mentioned: military barracks and stores on Heinzebok Island since 1994; for LIB 267 in Yebyu township in 1994 and 1995; for LIBs 406, 407 and 408 in Yebyu township; a military training ground and other construction work for LIBs 403, 404 and 405 in Thayetchaung township in 1995; for Battalion 103 in Palaw township in 1995; for Battalion 101 and Battalion 280 in Palaw township in 1997; for Battalion 280 in Palaw township in 1997; houses for soldiers from Battalion 404 and military buildings near Ohnbinkwin and Kadaik in Yebyu township in 1995; for Battalions 408, 409 and 410 in Yebyu township; for LIBs 273 and 405 in Yebyu township; work camps on the Eindayaza to Natkyizin section of the Ye-Dawei (Tavoy) railway in Yebyu township in 1996; two buildings for LIB 407 in Yebyu township in 1997; for LIBs 17 and 25 in Dawei (Tavoy) township in 1996; and for three army camps near Yebone village in Yebyu township since 1988.

481. Including Yebyu, Dawei (Tavoy), Thayetchaung and Palaw townships.

482. HRDU, 001-0149; Amnesty International, 001-0793; Karen Human Rights Group, 001-1034, 001-1055, 001-1117 to 1118, 001-1128, 001-1348, 001-1368 to 1369, 001-1373, 018-2167, 018-2169, H24-6423, H24-6469, H24-6478, H24-6480, H24-6484; Mon Information Service, 001-1280, 001-1386, 001-1388, 042-2621, 043-2651, M56-7428; Human Rights Watch/Asia, 065-2969, 150-4690; FTUB, 164-7766 to 7767; H20-6294, H20-6296.

483. IB 263 and IB 264 were specifically mentioned.

484. Karen Human Rights Group, 001-0445, 001-0557 to 0559, 001-0565 to 0566; Human Rights Watch/Asia, 001-0711, 118-3995; Amnesty International, 064-2962.

485. See para. 397 below.

486. Amnesty International, 089-3605; Human Rights Watch/Asia, 154-4926; Human Rights Watch/ Refugees International, 154-5404.

487. Villagers from Matupi township were ordered to construct a police station in Lailenpi; villagers from Thantlang township were ordered to construct six sentry posts for LIB 266 in Thantlang.

488. Karen Human Rights Group, 028-2343, 154-5138 to 5140; Images Asia, 167-8308.

489. The land was confiscated by LIB 384 from villagers in Momauk township. See Mirante, I/51.

490. The road was being constructed from Talakwa, near Pathein, to Nga Saw beach (30 km north of Chaungtha); there is information that forced labour was also used for the construction of this road (see para. 422 below). See Karen Human Rights Group, 001-0652, 001-0692.

491. Artillery Battalion 20.

492. Karen Human Rights Group, 001-0563, 154-5148; Images Asia, 167-8337.

493. The witnesses questioned by the Commission come from different ethnic groups: Burman (3); Chin (4); Karen (36), Karenni (17); Mon (8); Muslim other than Rohingya (6); Rakhine (8); Rohingya (44); Shan (17); and Tavoyan (1). The testimonies cover, in particular, in Chin State, Thantlang and Paletwa townships; in Mon State, Bilin and Thanbyuzayat townships; in Kayah State, Demawso, Loikaw, Mawchi, Shadaw and Ywathit townships; in Kayin State, the following townships: Hlaingbwe (particularly in the Painkyone and Bee T'Ka areas), Kawkareik (particularly the area around Nabu village-tract), Kya In Seik Gyi, Hpa-an and Papun; in Shan State, the following townships: Laikha, Langkho (particularly the area around Wan Hat village tract), Lashio, Mongpan, Namhsam, Namtu, Taunggyi; and in Yebyu township in Tanintharyi Division.

494. The reference to military camps is thus not limited to those of the Tatmadaw, but embraces all work carried out for the camps of these different public forces.

495. See statements of Witnesses 29, 30, 31, 38, 46-48, 58, 62, 71, 81, 89, 98, 113, 138, 139, 155, 166, 162, 163, 173, 175, 176, 181-186, 202, 208 and 220.

496. See statements of Witnesses 113 and 155.

497. See statements of Witnesses 89, 160, 175 and 185. Witness 32 stated, for his part, that the military always commandeered him directly because his home was near their camp.

498. See statements of Witnesses 29, 58, 61, 91, 89, 98, 141, 157, 163, 168, 174, 175, 181 and 202. Witness 155 claimed that the military might require more than one person per family if the need arose.

499. See statements of Witnesses 13, 58, 89, 107, 100, 113, 144, 155, 165, 181, 185, 196, 204, 220-225 and 227.

500. See statements of Witnesses 144, 182, 183 and 185.

501. See statements of Witnesses 78, 155 and 165.

502. Several witnesses provided details on this subject: see statements of Witnesses 7, 9, 50, 51, 61, 71, 76-78, 82, 91, 132, 151, 160, 168, 170, 171, 174, 185, 190-193, 196, 198-202 and 205.

503. See statements of Witnesses 142, 143 and 180.

504. See statements of Witnesses 138, 139, 171 and 181.

505. See statements of Witnesses 168, 175, 180 and 195.

506. See statements of Witnesses 7, 62, 98, 100, 113, 116, 141, 142, 144, 166, 168, 174-176, 180, 181, 190, 195 and 196.

507. See statements of Witnesses 137, 204 and 208.

508. See statements of Witnesses 66, 92, 100, 107, 108, 114, 117, 118, 137, 144, 155, 157, 166, 168, 171, 175, 187, 190, 194 and 180.

509. See statements of Witnesses 7, 44, 56, 66, 99, 126, 142, 143, 155 and 181-183.

510. See statements of Witnesses 20, 51, 56, 92, 125, 126, and 145-148.

511. See statements of Witnesses 81, 124, 155, 165 and 185.

512. See statements of Witnesses 180 and 176. The latter stated that, in this context, he had to keep the military informed of the movements of other troops.

513. See statements of Witnesses 144 and 175.

514. See statements of Witnesses 48, 58, 81, 91, 116, 117, 119, 138, 139, 168, 173, 175 and 181. Witness 32 was the only person encountered who claimed to have received a little rice or yellow-pea curry from time to time.

515. See statement of Witness 162.

516. See statements of Witnesses 16, 48, 58, 81, 100, 102, 108, 116, 117, 162, 173, 175, 181 and 190. Witness 38 claimed to have received 10 kyat on a few occasions.

517. See statements of Witnesses 113, 160, 162, 171, 173, 174, 190, 198 and 201.

518. Several witnesses claimed to have been beaten: 13, 29, 37, 32, 48, 73, 85, 107, 108, 126, 127, 157, 165, 175, 181 and 201.

519. See statements of Witnesses 113, 126, 145-148, 181, 208, 220-225 and 227.

520. See statements of Witnesses 32, 56, 185, 200 and 201.

521. The amounts varied considerably: see statements of Witnesses 30 (1,000 kyat); 91 (25 kyat); 168 (100 kyat per day and one chicken); 181; 185 (1,000 kyat per month); 196 (200 kyat and one chicken); 212 (500 kyat) and 220 (500 kyat per project).

522. The cost of hiring substitutes can also vary: see statements of Witnesses 38 ( 200 kyat); 60 (200 kyat twice or three times per month); 81; 89 (100 kyat in 1991); 145 (300 kyat); 173 (100 kyat); and 174.

523. See statement of Witness 201.

524. Karen Human Rights Group, 001-1462.

525. Amnesty International, 088-3588; Karen Human Rights Group, 001-1462.

526. Karen Human Rights Group, 001-0027, 032-2423; Mon Information Service, M56-7419; Lin, VII/39.

527. See, for example, Karen Human Rights Group, 001-0549 to 0550, 001-0618.

528. Karen Human Rights Group, 032-2423; Heppner, XII/58-59.

529. See paras. 230-333 above.

530. The areas mentioned were Papun district and Dooplaya district. See Karen Human Rights Group, 001-0189, 001-0319, 001-0449, 154-5196; Images Asia, 125-4038.

531. The areas mentioned were located in Toungoo district. See Images Asia, 001-0216; Karen Human Rights Group, 001-0399.

532. The incidents referred to occurred in Thaton district. Karen Human Rights Group, 001-0312.

533. Karen Human Rights Group, 001-0304, 001-0312, 001-0318, 001-0449, 031-2409; Amnesty International, 093-3751; Images Asia, 125-4038.

534. S.H.A.N/Shan Human Rights Foundation, 001-0170.

535. Use of the population in Mawchi relocation camp was mentioned. See Karen Human Rights Group, 154-5095.

536. The areas mentioned were Papun and Dooplaya districts and Hpa-an, Kawkareik and Hlaingbwe townships. See Karen Human Rights Group, 001-0189, 001-0376, 001-0586, 001-0619, 031-2401, 031-2403; Images Asia, 125-4038.

537. Karen Human Rights Group, 031-2405, referring to events in Bilin township.

538. The specific area mentioned was Yebyu township. See Karen Human Rights Group, 018-2167.

539. Villagers in Kalaymyo township were forced to guard a newly-constructed section of the Gangaw to Kalaymyo railway, particularly during visits of important officials. See Karen Human Rights Group, 001-0563.

540. The area mentioned was Thantlang township. Karen Human Rights Group, 154-5138.

541. Hpa-an township. Karen Human Rights Group, 001-0376.

542. Toungoo district. Karen Human Rights Group, 001-0182, 001-0453, 073-3357.

543. Tamu township. Karen Human Rights Group, 001-0376.

544. The witnesses in question came from the following groups: Burman (3); Chin (1); Karenni (1); Karen (18); Mon (3); Muslim other than Rohingya (1); Rakhine (1); Rohingya (9); and Shan (2).

545. See statements of Witnesses 5, 19, 159, 161, 166, 169, 174, 177 and 236.

546. See statements of Witnesses 136, 220-225, 227 and 229.

547. See statements of Witnesses 182-185 and 198.

548. See statement of Witness 200.

549. See statements of Witnesses 19, 46 and 80.

550. See statements of Witnesses 163, 166, 169 and 173.

551. See statements of Witnesses 161, 163, 168 and 185.

552. See statements of Witnesses 160, 169 and 174.

553. Groups may vary from two to ten persons: see statements of Witnesses 159, 161, 172 and 177.

554. See statements of Witnesses 160, 161, 166, 169, 171 and 174-176.

555. See statement of Witness 25 who was beaten because he fell asleep during a roadside watch.

556. Witness 168 said that nine villages comprising 940 households had to pay 500 kyat per household for damage caused to military vehicles.

557. See statements of Witnesses 153, 160, 161, 163, 168, 169, 174 and 177.

558. See, in particular, the statement of Witness 216.

559. See statements of Witnesses 153 (one worker and two soldiers injured); 168 (worker had his leg blown off); and 174 (whose aunt was killed in a mine blast).

560. See statements of Witnesses 161, 171 and 175.

561. See statements of Witnesses 161 and 175.

562. See, in particular, the statement of Witness 236.

563. Witness 169 claimed to have paid the military 70 kyat per day so as to be exempted from guard duties.

564. The costs of substitutes vary: see statements of Witnesses 169 (30-50 kyat per day); 172 (30 kyat per day) and 185 (100 kyat).

565. See statements of Witnesses 15, 99 and 185. Witness 237 stated that the military had commandeered his boat several times per month without paying him. Deprived of income from paying passengers, he was quite simply no longer able to pay the rent and maintenance costs demanded by the owner.

566. There does, however, appear to be provision made for compulsory military service in Myanmar legislation (see paras. 255 to 257 above).

567. Karen Human Rights Group, 001-1463 to 1464; M56-7418 to 7419; Liddell, V/14-16; Lin, VII/23, 34-36.

568. Karen Human Right Group, 001-1463, Human Rights Watch/Asia, H07-5807 to 5808; Images Asia, 127-4174 to 4176; Liddell, V/14-16.

569. Karen Human Rights Group, 001-0190, 001-0603, 001-1463; Human Rights Watch/Asia, H07-5808.

570. Mon Information Service, M56-7418.

571. FTUB, 164-8080.

572. Karen Human Rights Group, 001-0310; Images Asia, 127-4174 to 4176, M36-7019; Human Rights Watch/Asia, H07-5807; Liddell, V/15-16; Lin, VII/35.

573. See orders 9 and 10 in Appendix XI.

574. See order 10 in Appendix XI.

575. Mon Information Service, M56-7418 to 7419.

576. Karen Human Rights Group, 001-0908, 031-2416 to 2417.

577. See statements of Witnesses 5, 75, 93-95, 170, 215 and 216.

578. See statement of Witness 93.

579. ibid.


(5) Work on agriculture, logging,
and other production projects

(a) Information provided to the Commission

394. Nature and conditions of work. Information provided to the Commission indicated that villagers, and to a lesser extent urban residents, were forced to work on a variety of projects undertaken by the authorities, in particular the military. These projects included cultivation of rice, other food crops, cash crops such as rubber, shrimp farms, kilns for producing bricks, and logging activities. The produce might be used by the military, but in many cases it was simply sold. The income generated did not go to the villagers, but either went into the funds of the military unit exacting the labour, or individuals within that unit. Some money might be paid to commanders outside the unit itself. In most cases the military unit involved was the local army camp or battalion (including NaSaKa units in areas where these operate), but larger schemes might be implemented at the Light Infantry Division or Regional Command level.(580)

395. For cultivation, the forced labour of villagers was used for the entire process, from clearing the land to harvesting the crop. For logging, villagers had to fell the trees and saw them into timber. For brick-making, they had to provide the raw materials and fuel in addition to labour for the process. The villagers were not paid and had to provide their own tools and equipment. Often, the land on which cultivation projects were implemented was confiscated from villagers without compensation. In certain cases, land with an existing crop was confiscated without compensation, the owners of the land were forced to continue tending that crop, and when ready the crop had to be given to the military. In other cases, the process appeared to be one of direct extortion: a village was simply ordered to deliver a certain quantity of crop to the military at the end of the season, and it was up to that village to arrange land, obtain seed or seedlings, and tend and harvest the crop. The villagers were not remunerated in any way. In the extreme case, harvested crops were simply seized by the military; poultry, livestock and other items were similarly seized. Theft of such property was most common in areas recently occupied by the military, or areas with insurgent activity.(581)

396. Specific examples. Information received by the Commission in this regard covered most areas of Myanmar, including Kachin, Kayah, Kayin, Mon, Shan and Rakhine States and Bago, Sagaing and Tanintharyi Divisions. This kind of work was more common in areas where the military had a more well-established presence. Information was received that several battalions in Tanintharyi Division(582) had used forced labour on projects they controlled for their own benefit or that of their officers.(583)

397. The largest volume of information received related to the cultivation of food and cash crops for the military. These crops included rice, vegetables such as beans and corn, sugar cane and rubber for a number of battalions in Kachin,(584) Kayah,(585) Kayin,(586) Mon,(587) Rakhine(588) and Shan(589) States and Bago,(590) Sagaing(591) and Tanintharyi(592) Divisions. In Rakhine State, Muslims were also forced by the military to do cultivation work for Burmese and Rakhine villagers.(593) The information covered a period from before 1994 to at least 1997.

398. Information was received regarding the use of forced labour for logging and bamboo cutting that appeared to be for commercial purposes. The information covered Kayin,(594) Mon,(595) and Shan(596) States and Sagaing(597) and Tanintharyi(598) Divisions over the period from 1992 to the present.

399. Information was received regarding the use of forced labour for animal husbandry, most commonly at shrimp farms. The information was from Rakhine State(599) and Sagaing Division.(600) The information covers a period from 1989 to at least 1995.

400. Information was received regarding the operation by military units of kilns for the production of bricks. There was information of forced labour for the collection of fuel for the kilns and work on the kilns themselves, in Kayin State,(601) Rakhine State(602) and Tanintharyi Division.(603) The information covers a period from at least 1994 to 1996.

(b) Oral testimony

401. Evidence from witnesses revealed that throughout the country the military conduct activities such as cultivation, fish and shrimp farming, forestry and manufacturing which are likely to enable them either to meet their material needs or produce profit. The evidence also shows that they mobilize the population, forcing the people to carry out these activities in difficult conditions.

402. Fifty-eight witnesses gave evidence to this effect,(604) thus enabling the Commission to identify some of the common practices of the military.

403. Some witnesses were forced to cut wood and bamboo, which the military subsequently sold.(605) Other witnesses were obliged to farm fish(606) or prawns(607) for the military, including all associated work, from the setting-up of the project to its continued maintenance.

404. Several witnesses were coerced into agricultural activities which are organized in various ways. In some cases the military seize the land from villagers, without compensation, and forces them to cultivate it for their benefit.(608) Witnesses claimed to have had to leave Myanmar because they no longer had enough land to make a living.(609) In other cases, the military oblige the workers to cultivate land located within the military camp,(610) or to clear the forest or jungle near the camp so as to make this land suitable for cultivation.(611) The military often specify the quantity of the crop to be produced. If this quantity is not produced, the villagers have to make up the difference under pain of sanction.(612)

405. Witnesses who supplied relevant evidence referred to crops of chillies,(613) corn,(614) rice,(615) rubber,(616) walnuts,(617) sugar cane(618) and pineapple.(619)

406. One person per family is usually requisitioned to perform the agricultural work,(620) the order specifying the tasks to be done being transmitted through the intermediary of the village head.(621) The witnesses stated that they had received no pay for the work performed and had to supply their own food, tools or oxen for ploughing.(622)

407. Finally, the evidence reveals that the military occasionally enter villages and seized, without any compensation, whatever animals or crops they find.(623)

(6) Construction and maintenance of roads,
railways and bridges

(a) Documentary material

408. Nature and conditions of work. The Commission received considerable detailed information concerning the use of forced labour on the construction of roads and railways. These ranged in size from small projects using the labour of a few local villages such as the clearing of a dirt road to a newly-established military camp(624) to those using tens or hundreds of thousands of labourers. For example, the government stated in comments to the ILO that "799,447 working people ... contributed voluntary labour"(625) for the construction of the Aungban to Loikaw railway connecting Shan and Kayah States; elsewhere it has stated that 921,753 people contributed to the building of the Pakokku to Monywa section of a railway in Magway and Sagaing Divisions connecting Chaung-U to Kalaymyo via Pakokku,(626) and that over 44,000 people were "contributing voluntary labour" on a single day on three sections of the Ye to Dawei (Tavoy) railway between Mon State and Tanintharyi Division in January 1994.(627)

409. Witnesses informed the Commission that those persons from whom they had obtained secondary statements consistently told them that the projects which they had been forced to work on did not benefit them. This was in part because local forms of transport (of which the most common was the bullock cart) were not permitted to use these roads; in general only motor vehicles could use them, and the vast majority of villagers did not own such vehicles.(628)

410. Once a project was completed, this did not necessarily mean an end to forced labour connected with it. Often on completion of a road or railway, particularly in conflict areas, people were forced to work as unarmed sentries guarding it at night, and to sweep roads for mines before troops pass, as discussed in paragraphs 374-388 above. People also had to provide labour for the maintenance of the project, and repair it in the event of damage. In the rainy season, roads and other infrastructure often washed out, and so more forced labour was required to repair them in the following months (around November to January). In particular, because roads were usually not sealed, were in any case poorly constructed and sometimes traversed paddy fields, they were damaged easily and most had to be rebuilt every year.(629)

411. In rural areas a given household might have to provide a worker for as much as two weeks in a month, and sometimes even more, especially if there was more than one project being carried out simultaneously. This was in addition to any other forced labour demands, such as portering or work at military camps. In some cases when a project was particularly urgent or important, all the able-bodied persons from a village were required to participate in the work. It should be noted that the forced labour requirement for these projects appeared to be significantly less in urban areas than in rural villages.

412. In addition to the forced labour of civilians, there were also a number of labour camps across the country where prisoners(630) were used for the purpose of constructing roads, railways, and other infrastructure, or working in quarries to provide materials for such construction. These prisoners frequently worked in heavy shackles. Members of the Tatmadaw were also required to work on such projects.(631)

413. The Commission was provided with detailed information on the working conditions of forced labourers. People might have to travel considerable distances to work sites, particularly for more extensive projects requiring large numbers of labourers. There was information that people from as far 100 km away were forced to work on the construction of the railway from Ye to Dawei (Tavoy).(632) In general it appeared to be common for workers to have to walk for several hours to reach a work site.(633) When a village, household or worker was required to complete a given amount of work (a given length of embankment, a given number of kyin(634) of excavation or crushed stones), they were not able to leave until that work was completed. Often, a time period was specified within which the work had to be completed. If the work was not completed to the satisfaction of the soldiers supervising the work (if the work was done slowly, or was of bad quality, for example), that village, household or worker would not be allowed to return home, and those involved might be beaten or otherwise punished.

414. Workers usually had to arrange their own transport to the work site, though in some cases owners of suitable transport would be ordered to provide free transport for workers at their own cost.(635) Workers usually had to bring their own food and necessary tools, though in certain circumstances tools were provided (when the population would not normally own the necessary tools, either because it was an urban population, or because the work required special tools). If they became sick, they were not treated, and usually had to pay a fine or arrange a replacement to enable them to return to their village to seek medical attention.(636) If they were injured they were in most cases neither treated nor given any compensation.(637) Deaths from sickness and work accidents appeared to be frequent on some projects.(638)

415. People forced to work on these projects were not paid, other than in exceptional circumstances.(639) The Commission received information that forced labourers were paid in some circumstances for work on the railway from Ye to Dawei (Tavoy), but this was the only project for which the Commission received such information, and even on this project payment was rare and often at rates far below prevailing market rates;(640) payment did not appear to have continued, as there were several reports of unpaid forced labour on the project in 1997.(641)

416. If a worker was required from each household, this was usually irrespective of the number of able-bodied persons in the household, so that if a household consisted of a widow and her child, she would have to go and either take her child with her or arrange for someone else to look after it.(642) If there was only one adult male in a household and he had to work for the family's income, another member of the household would have to go or the family would starve. This was especially true in the rainy season, which was the busiest period for farmers, but also the most dangerous at work sites because of the increased prevalence of disease and increased risk of injury or death from landslides and collapsing embankments.(643) Thus, not only was there a large proportion of women, children and older workers at work sites, but they were more likely to be at risk from disease and accidents.(644) Such people were also particularly vulnerable to abuse at the hands of the soldiers.(645)

417. Once they arrived at the work site, workers would usually have to make their own arrangements for accommodation. This meant arranging to stay at a nearby village, or building some kind of shelter at the work site. Often, workers simply had to sleep at the work site with no shelter.(646) There was usually no sanitation or other facilities of any kind provided at work sites. For some larger projects, however, which had work sites established for longer periods of time, some facilities such as sanitation and shelter might be present, though these had been constructed using the forced labour of other villagers.

418. The workers were usually supervised by the military, though on certain projects soldiers might not be actually present all the time. Since the military knew who had been assigned to which section, they were able to take action if a certain piece of work was not completed, and thus did not necessarily need to be present while the work was being carried out (though they often were). Workers were usually forced to work for long hours, typically between eight and 12 hours per day,(647) with only a one-hour break for lunch in the middle of the day. Workers were usually not permitted to take rest breaks at other times.(648) Workers were subject to verbal and physical abuse by the soldiers overseeing the project, particularly if they were not working to the satisfaction of the soldiers; some workers had died as a result of physical abuse.(649) Cases of soldiers raping female workers were not uncommon.(650) Punishments given to workers in cases where they were perceived to be working badly or refused to carry out forced labour included kickings, punchings, beatings with canes, sticks or pieces of bamboo, arrest and detention at a military camps, confinement in stocks, or in some cases severe torture or execution.(651)

419. Specific examples. The Commission received extensive and detailed information regarding the use of forced labour in connection with road construction, repair and improvement projects. The information covered all fourteen States and Divisions in Myanmar.

420. There was information regarding the use of forced labour on the construction or improvement of major road projects in many parts of the country. These included a road from Myitkyina to Putao (through Sumprabum) in Kachin State, in 1994 and 1995;(652) the Mandalay ring road in 1994 and 1995;(653) parts of the Yangon to Mandalay highway (through Toungoo) from 1994 to at least 1996;(654) a road from Haka in Chin State to Gangaw in Magway Division in 1996 and 1997(655) and from Gangaw to Kalaymyo in Sagaing Division in 1995;(656) the highway from Yangon to Sittway (Rakhine State) since 1988 and a four-lane road continuing from Sittway on to Taungpyo on the Bangladesh border in 1991 and 1992;(657) the Labutta to Yangon road (through Myaungmya, Pantanaw and Nyaungdone) linking Yangon and Ayeyarwady Divisions, over the past few years;(658) and on a road linking Ye in Mon State with Kawthaung in the far south of Tanintharyi Division, through Dawei (Tavoy) and Myeik (Mergui), since 1994.(659)

421. In addition to these major road projects, the information provided to the Commission indicated that in various parts of the country extensive networks of roads were constructed with forced labour, particularly in areas recently-occupied by the military after offensives against opposition groups. A considerable volume of information was provided regarding the construction of a major road network throughout Kayin State and bordering areas of Bago Division,(660) between 1993 and 1998, as well as on the upgrading of some existing roads in the area.(661) Forced labour was also used on a regular basis for crushing stone in Kyaukkyi township for road construction.(662) The road network in Chin State(663) was also improved and extended over the last few years using forced labour,(664) and in Shan State the network of roads in certain areas in the south of the State(665) has been improved with forced labour since at least 1992, but particularly since 1996.(666) In Tanintharyi Division, in addition to the road from Ye to Kawthaung mentioned in paragraph 420 above, there appeared to be two particular areas where road networks were being developed with forced labour: in the area of Tanintharyi town since 1994, and particularly since 1996,(667) and in the area around Kanbauk in Yebyu township in 1995.(668)

422. There was also information regarding road construction and improvement in Kayah State, particularly roads to relocation sites;(669) Mon State;(670) Sagaing Division;(671) Rakhine State;(672) and Ayeyarwady Division.(673)

423. In addition to road construction projects, the Commission received information regarding the use of forced labour on railway construction projects in various parts of Myanmar. A large volume of information covering a period from 1992 to 1997 and including copies of orders from the authorities requiring labour for the project indicated that thousands of people(674) were forced to work on the construction of a railway from Ye in Mon State to Dawei (Tavoy) in Tanintharyi Division.(675)

424. In Shan State, people were forced to work on a number of railway construction projects, including a railway from Shwenyaung to Namhsam since 1993, a section of railway from Namhsam to Mongnai since 1992, and a section of railway from Laikha to Mongkaing in 1996.(676)

425. Information was received concerning the use of forced labour for the construction of a railway from Aungban in Shan State to Loikaw in Kayah State, in 1992 and 1993.(677) People were taken from, among other places, Loikaw town and relocation camps, including a relocation camp near Demawso, to build the railway.

426. Information was also received concerning the use of forced labour on a railway linking Chaung-U and Pakokku to Kalaymyo, particularly the section from Pakokku to Myine in Magway Division and the section from Gangaw in Magway Division to Kalaymyo in Sagaing Division.(678) Many of those forced to work on the latter section were from Chin State. The information covered a period from 1993 to 1995.(679)

(b) Oral testimony

427. Roads and related infrastructure. Almost 100 witnesses, from different ethnic groups,(680) gave evidence that they had been forced to work or to have observed other persons forced by the authorities to work on roads or related infrastructure. These testimonies cover a significant part of the territory of Myanmar; they refer to roads forming part of a network between towns and villages, or roads linking army camps to this network or to one another,(681) and mainly recount events occurring over recent years, if not months.(682) One witness, who returned to Myanmar at the beginning of 1998 after an absence of six years, stated that the work demanded of the population in respect of road construction and maintenance had increased substantially.(683)

428. As regards work organization and working conditions, testimonies from persons who had been obliged to work corroborate those of village heads,(684) heads of village sections(685) and a deserter from the Tatmadaw who had been involved with organizing such labour.(686)

429. Throughout the territory of Myanmar, the authorities recruit the necessary labour for the roadworks according to a similar pattern. The military transmit a written order to the village head;(687) this order specifies the work to be accomplished and is sometimes accompanied by threats, which are expressed by means of a bullet or a piece of charcoal attached to the order; these symbols signify that reprisals may be taken by the authorities against the defaulting person or village.(688) With the exception of the situation prevailing in the northern part of Rakhine State, to which we shall return, the military do not generally intervene directly.(689)

430. A specific section of road to be built or repaired is assigned to each group, section or village. The village head is responsible for organizing the necessary labour force.(690) One person per family is generally called up, though the authorities may demand others as needed.(691) The witnesses stated that men, women and children between the ages of 12 and 72 performed compulsory labour on roadworks.(692) Even members of families that might be in a position to have a certain influence on the authorities are obliged to work on road construction or repairs.(693) Large numbers of children can be found working on these sites since, as soon as they are capable of working, their parents send them to perform the work demanded; they themselves can therefore continue to provide for the family needs, by cultivating their land or engaging in remunerated employment or work.(694)

431. Road construction work generally consists of levelling the ground, cutting trees, breaking stones, transporting earth for embankments and spreading tar.(695) As for repairs, the workers must maintain the roads and are even forced to rebuild them completely, in certain regions, after each rainy season. Several witnesses stated that the roads built or renovated were reserved for the exclusive use of the authorities.(696)

432. Working conditions are arduous,(697) and the working day is long, varying from 8 to 12 hours.(698) The work is sometimes accompanied by ill-treatment, including beating and kicking.(699) Acts of torture or extreme violence, including rape, also occur.(700) Some workers have died as a result of complications due to hunger, malaria, other infectious diseases and lack of timely medical care.(701)

433. Apart from rare and exceptional occasions, the persons recruited were neither paid nor fed.(702) When questioned on this subject, the witnesses all stated that they could not refuse to do the work, because they were afraid of the physical punishment or fines which could be imposed by the authorities.(703) Tools are generally not provided(704) and, if the workers have to live on the site, they must build their own makeshift shelters in which to sleep at night.(705)

434. In several cases, witnesses have stated that it is possible to be exempted from work in exchange for a sum of money which varies considerably from case to case.(706) One witness observed that the result of this practice was that the least well-off carried the greatest burden of the work, since they did not have sufficient means to be spared.(707)

435. Finally, the situation in the northern part of Rakhine State appears to be more severe in all respects than that prevailing in most other parts of the country. Most of the witnesses questioned on this subject, who were members of the Rohingya ethnic group, and who had left the country very recently, claimed to have been subjected to systematic discrimination by the authorities; the discrimination took the form, in so far as work on the roads is concerned, of an overwhelming workload.(708) In fact, the work is not really organized systematically;(709) the Rohingyas may be required to work by any authority, be it the army, the NaSaKa or the local police. The order may come via the village head or directly from any authority that needs workers for a given job. Working conditions are excessively arduous; tasks must be performed in an atmosphere where insults, abuse, ill-treatment and torture are commonplace.(710)

436. Railways. From the evidence of witnesses, the Commission concludes that the authorities of Myanmar have been using forced labour for the construction and maintenance of various railways across the country since at least 1990. Forty-one witnesses(711) supplied the Commission with relevant information on railways already constructed, or under construction, in Kachin,(712) Kayah,(713) Mon(714) and Shan States and in Bago,(715) Tanintharyi and Yangon Divisions.

437. The labour for the railway construction work is recruited in the same manner as for road construction, the military using the services of village heads.(716) One person per family is generally called up.(717) Each family, group or village is assigned a section of the railroad.(718) Men, women and children claimed to have worked on these railway construction sites or to have seen such persons forced to do so;(719) it is common to meet children sent by their families to perform the work required.(720)

438. Soldiers and prisoners can also be found working on these sites. The work done by them is no different from that demanded of civilians, except for the fact that the soldiers have only to work a fixed number of hours and are not necessarily obliged to complete the task assigned,(721) and that the most tedious work is reserved for the prisoners.(722)

439. Work on railway construction consists, initially, of preparing and levelling the ground.(723) Subsequently, the workers have to crush the necessary stone,(724) lay the chippings, cut wood to make sleepers(725) and then lay the sleepers and rails.(726) This is followed by maintenance work involving removal of weeds and scrub.(727) Work starts early in the morning and finishes late in the day, sometimes after dark; in some cases the workers are not even able to take a short break at midday.(728)

440. The workers are not fed,(729) have to sleep at the work site if it is too far from their homes(730) and usually have to provide the tools necessary for the performance of the task.(731) They are not paid,(732) though some claim to have been promised compensation, which they never actually received.(733)

441. Workers are subjected to ill-treatment when the supervising military authorities consider that the work is not progressing satisfactorily.(734)

442. It is possible to be exempted from the work by paying a certain amount of money to the authorities(735) or by finding a replacement.(736)

443. Finally, one witness mentioned that the military demanded a tax, over and above the work to be carried out, because of the fact that the railway would henceforth pass near his village.(737)

(7) Other infrastructure work

(a) Documentary material

444. Nature and conditions of work. In addition to the use of forced labour on the construction of roads, railways and associated infrastructure, the Commission also received information that people from most parts of Myanmar were forced to work on the construction and maintenance of other infrastructure projects. These projects included irrigation works, dams, canals, power-stations, a gas pipeline, airports, helipads, schools, hotels and a museum, as well as infrastructure related to events such as the student sport festival which takes place annually in a different State or Divisional capital.(738)

445. The general nature and organization of such work was the same as that described for road and rail infrastructure.(739)

446. Specific examples. The information provided to the Commission contained details of the use of forced labour on a large number of other infrastructure projects from most parts of the country.

447. Forced labour was used to construct dams and other work for irrigation and hydroelectric power generation. This work included dams in Bago Division(740) and Rakhine State,(741) dams and irrigation projects in Sagaing Division,(742) a major dam project in Shan State,(743) a dam in Tanintharyi Division(744)  and a canal in Yangon Division.(745) Most of these projects were major, involving hundreds or even thousands of labourers.

448. There was evidence before the Commission in the form of secondary statements that forced labour was used for the construction of helipads in Yebyu township in Taninharyi Division: helipad at Byu Gyi village, another helipad between Kadaik and Ohnbinkwin, and a third helipad between Migyaunglaung and Mayan Chaung, all in 1995.(746) There was also evidence in the form of a secondary statement relating to a helipad being constructed in the same region in 1996.(747) In a communication addressed to the Commission, TOTAL stated that most of the helipads situated on the pipeline route had been constructed by TOTAL or by companies working for TOTAL and applying its code of conduct, although TOTAL did not know under what conditions other helipads in the region had been constructed.(748)

449. There was information that forced labour, including that of non-Buddhists, was used on the construction and renovation of pagodas in Chin State,(749) Shan State,(750) Tanintharyi Division,(751) the construction of a monastery in Sagaing Division,(752) as well as for work at Bayintnaung Palace at Toungoo in Bago Division,(753) Mandalay Palace(754) and on the construction of a Buddha Museum at Sittway in Rakhine State.(755)

450. Information was provided regarding the use of forced labour for schools in Chin State, Kayin State and Sagaing Division, and clinics in Sagaing Division and Tanintharyi Division.(756)

451. Forced labour was used for other projects including the Student Sport Festival in Chin and Rakhine States,(757) hotels in Rakhine State,(758)  a toilet for a village in Kayin State,(759) and a 30-mile fence in Kachin State.(760)

452. There was evidence before the Commission in the form of secondary statements that forced labour was used until May 1995 for ground clearance work to provide access to survey teams for the Yadana gas pipeline project in Yebyu township, Tanintharyi Division.(761) In a communication addressed to the Commission TOTAL stated that it was wrong to claim that the preparatory clearing work could have been undertaken by forced labourers for the purpose of facilitating the access of the project teams. During the years 1993 and 1994, clearing work had been carried out under the supervision of TOTAL by the Compagnie générale de géophysique (CGG).(762) In view of the contradiction between the facts presented, and since the Commission was denied access to Myanmar to supplement its evidence, no finding on this matter could be made.

(b) Oral testimony

453. Twenty-two witnesses gave evidence covering the period between 1993 and 1998(763) concerning infrastructure works involving forced requisition of persons by public authorities carried out in Kayah, Kayin, Mon, Rakhine and Shan States and in the Ayeyarwady, Bago and Sagaing Divisions.(764)

454. The infrastructure works consist, inter alia, of construction of irrigation canals,(765) drainage channels,(766) airports,(767) a hydroelectric power station,(768) villages,(769) museums(770) or schools,(771) laying of electrical cables(772) or telephone lines,(773) and general infrastructure works in preparation for the Student Sport Festival, including levelling and preparation of a sports field.(774) The irrigation work generally involved hundreds of persons coming from dozens of villages that were often far from the work site. As for telephone lines, a witness gave evidence that he had to cut logs for the line between Panglong and Laikha.(775)

455. Work organization and working conditions are similar to those described for road and railway infrastructure.(776) The order specifying the work to be performed is usually transmitted by the village head or ward authorities(777) responsible for finding labour to carry out the required work. However, the military may intervene directly and round up the persons needed.(778)

456. Each village or group(779) is assigned a section of the project to be completed.(780) To this end, one person per family is usually requisitioned(781) and the work is divided up in accordance with a pre-established rota among the families of the village or group involved. Men, women and children - some of them barely ten years old(782) -- work on these sites.

457. The workers are neither paid(783) nor fed(784) and sometimes have to spend several nights on the site of their work assignment.(785) Several witnesses stated that they could avoid having to perform this work if a replacement was found.(786) Finally, the conditions under which the work has to be performed are arduous; the workers are frequently subjected to ill-treatment or other violations of fundamental human rights, including acts of torture.(787)

(8) General work

(a) Nature and condition of work

458. Information was also provided to the Commission that people throughout the country were forced to carry out regular tasks such as cleaning and beautifying public areas, particularly when important officials were due to visit. Because the nature of the work meant that it was mostly applicable to urban areas, it was mostly urban residents who had to carry it out. Government employees in particular were coerced into doing this work during the weekends.(788)

459. The ward authorities were usually responsible for organizing such work. Typically, one person from each household in the ward would have to participate for one day per weekend to carry out these tasks. Soldiers were sometimes used to supervise this work.(789)

460. Residents were also required to maintain their houses to certain specifications, or face eviction. Such specifications could include keeping the house painted, or replacing thatch roofs with a corrugated-iron roof.(790)

(b) Specific examples from documentary
material and oral testimony

461. The Commission obtained evidence on this topic from several parts of the country. In Myaungmya in Ayeyarwady Division, local authorities required one person from each household to work every Saturday cleaning roads and the school and hospital compounds.(791) Similarly, one person per family had to do various jobs in the city of Mandalay.(792) Forced labour was also regularly used for cleaning up the area around the lake at Hpa-an in Kayin State(793) as well as for half a day every Saturday at Loikaw in Kayah State, both around the town,(794) and at an army camp.(795) General cleaning and maintenance work also had to be done by one member of each household every Saturday in Kawthaung town in Tanintharyi Division.(796) Finally, forced labour was used for cleaning the town of Mrauk-U in Rakhine State in 1996 in preparation for a visit by a high-level government official.(797)

* * *

462. In reaching these findings of fact as set out in section C, the Commission was impressed with the truthfulness of the accounts given by the witnesses from whom it heard direct testimony. The questions asked by the Commission of these witnesses probed issues with a view to establishing veracity, which included issues about any political affiliation or membership of any opposition group. In many instances the witnesses were not educated people and the Commission was struck by the fact that overall they were careful to draw the distinction between matters which they had seen or experienced, and matters of which they had only heard from others. The Commission was also struck by their candour and absence of exaggeration. For these reasons, the Commission had no hesitation in relying on their testimony.

463. In reaching its findings of fact in sections B and C, where those findings relied on documentary evidence as discussed, the Commission had regard to the relative probity of documentary material as indicated. The Commission was assisted in this task by its confidence in the oral testimony of witnesses and by the extent to which the oral testimony corroborated so many aspects of the documentary material, both as to general patterns and specific detail.

464. Having regard to the vast amount of documentary material available, the Commission took account of what it considered as the most reliable information and although many of its findings could be supported by other documentation, it has footnoted the major sources and not all sources. Again, the Commission is confident in these findings.

465. The Commission wishes to acknowledge that this inquiry and its findings would not have been possible without the assistance of a number of people. While it is unusual for witnesses to be acknowledged in an inquiry, in this case the persons who gave oral testimony did so in conditions of considerable physical difficulty and with a great fear of reprisal from authorities to themselves or their families should their identities become known. In one instance, witnesses, including one who was ill, travelled for some 20 days in order to provide testimony to the inquiry.

466. The Commission is also indebted to a number of individuals and non-governmental organizations who assisted with identification of pools of witnesses and who made the sometimes very complicated arrangements for the Commission to meet them. It was the dedication of these people which enabled the Commission to have such a spread of witnesses, with recent information about conditions in Myanmar.

467. Finally, on this aspect, the Commission wishes to pay tribute to staff who not only braved the sometimes difficult physical circumstances assisting the Commission members in taking the evidence in locations, but also had the task of carefully cross-referencing and sifting through the vast documentary material to identify the information referred to in this chapter. The relatively simple way in which facts are described in this chapter belies the complexity of the task, although the footnotes give some glimmer of their invaluable work.

Part IV (cont.)

 


580. Karen Human Rights Group, 001-0028, 032-2424, M42-7170.

581. Karen Human Rights Group, 032-2424, M42-7170.

582. LIBs 401 through 410 and battalions 25, 265, 280.

583. Mon Information Service, M56-7426.

584. The information mentioned the confiscation of land in Waimaw township in 1994 by IB 29, who then forced villagers to cultivate sugar cane and rice for the battalion on this land. More recent information indicates that LIB 321 forced villagers from a number of villages near Myitkyina to work for the whole season on their paddy fields, that villagers were also forced to work for LIB 384 on paddy fields which had been confiscated from them in Momauk township, and do similar work for LIBs 385 and 386 in Mohnyin township. See HRDU, 001-0167; Mirante, I/51-52.

585. In 1994, Battalions 336, 421 and 422 each reportedly confiscated 1,000 acres of land from villages in the northern part of the State and then forced villagers to carry out cultivation work on this land. In 1996, villagers who had been relocated to Shadaw were reportedly forced to clear land for the army to grow beans. See Karen Human Rights Group, 001-0436, 154-5083.

586. Forced labour was reportedly used on the following projects: cultivation of land in Kawkareik township, which had been confiscated from villagers, for battalions 330, 355 and 356; carrying out rice cultivation for the army and DKBA on land confiscated from villagers in Nabu in Kawkareik township; cultivation of rubber plantations for LIBs 547 and 549 in Kawkareik township in 1997. Karen Human Rights Group, 001-0444, 001-0586, 001-0592 to 0593; Amnesty International, 099-3896; Min Lwin, H06-5767 to 5776, H06-5783 to 5784, H06-5791 to 5794.

587. It appears that in 1995 villagers from Ye North township were forced to cultivate vegetables for LIB 106 on land which had been confiscated by the Battalion. See Karen Human Rights Group, 001-0175.

588. Villagers were reportedly forced to work clearing land for the NaSaKa in Maungdaw township and cultivating rice for several battalions in Sittway (Akyab) township in 1994 and 1995. Karen Human Rights Group, 001-0445; Human Rights Watch/Refugees International, 154-5404.

589. It appears that LIB 510 forced villagers at Kho Lam relocation site near Namhsam to clear the forest and grow beans for them; people in Hsipaw township were forced to grow corn for the military. See Karen Human Rights Group, 001-0698; Shan Human Rights Foundation, 147-4621.

590. In 1995, IB 60 and LIB 351 reportedly confiscated a large area of land in Kyaukkyi township and then forced about 500 local villagers every day to cultivate dry-season rice for the army on this land. Once the initial cultivation had been finished, the villagers then had to guard the fields from wandering animals. See Burma Issues, 001-0539 to 0541.

591. Battalions 87, 89, IB 228, Battalions 362, 363, 365, Military Intelligence 17 and Training Battalion 10 had all used forced labour for their cultivation projects in Kalaymyo township. See Images Asia, 164-8337 to 8338.

592. The following projects were mentioned: exaction of labour for many years by battalions in Dawei (Tavoy) and Thayetchaung townships, including LIBs 403, 404 and 405, on their plantations (in particular, these three battalions forced villagers in 1997 to construct dykes to form cultivable land which they then took for themselves; LIB 404 used forced labour in 1997 to clear land for further rubber cultivation); by LIBs 406 and 408 for cultivation of land in Yebyu township; and by military units in Launglon township for rice cultivation in 1997. There was also information that in 1997, over 1000 acres of rice fields were confiscated on Pyingyi Island in Launglon township for the establishment of an experimental rice cultivation project being implemented by IB 104 and government authorities; more than 500 local people were then forced to work on this project. See Mon Information Service, 139-4447 to 4450, M56-7425 to 7429, M57-7432.

593. Human Rights Watch/Asia, 154-4926.

594. The information mentioned cutting trees and working in a sawmill for LIB 545 in Kyondo in Hpa-an district in 1995 and sawing logs into timber for Battalion 330 in Kawkaraik township in 1995. See Karen Human Rights Group, 001-0586, 001-0592 to 0593, 001-0602.

595. Villagers from Thaton township were reportedly forced by the military in 1995 to cut large amounts of bamboo, and then sell this bamboo in Bilin town, with all the money being kept by the soldiers. Karen Human Rights Group, 001-0175.

596. Villagers in Mongping township were reportedly forced to clear teak trees as part of the work for constructing a camp for LIB 360 in 1992 (see para. 356 above); these trees were sold in Kengtung town, with the proceeds reportedly shared by the commanders of LIB 360 and LIB 43. See Shan Human Rights Foundation, 001-0334.

597. In March 1997 IB 228 reportedly forced villagers to transport teak which the soldiers then sold for profit. In 1995 officers from IB 50 also reportedly forced villagers with bullock carts to smuggle teak logs from India; the group was arrested by Indian forces, who detained the villagers, but released the soldiers. Karen Human Rights Group, 001-0578, HRDU, 001-0163 to 0164; Images Asia, 167-8338; Lin, VII/13-15.

598. There is information that LIBs 404 and 406 forced people to carry out hardwood logging in Yebyu township in 1994 and 1995, with the wood that was not used for construction being sold by the Battalion; similar work had to be carried out for LIBs 403, 404, 405 and 406 in Thayetchaung township, until at least 1997. Karen Human Rights Group, 001-1054 to 1055; Mon Information Service, 139-4449.

599. There is information that people had to look after livestock for several battalions in Sittway (Akyab) township in 1994 and 1995, work on a shrimp farm in Ponnagyun township since 1989. See Karen Human Rights Group, 001-0558 to 0559; Human Rights Watch/Asia, 001-0711; Amnesty International, 064-2962.

600. There is information that people were forced to work on the digging of 80 fishponds for IB 10 in Kalaymyo township in 1995. See HRDU, 001-0164; Images Asia, 167-8338.

601. There is information that villagers had to cut firewood to fuel army-owned brick kilns in Kawkareik township; villagers with bullock carts had to transport wood and bricks to and from army-owned brick kilns in Kawkareik township; and villagers had to collect firewood for LIB 545's brick kilns in Kyondo, with soldiers then selling some of this wood to villagers. See Karen Human Rights Group, 001-0629, 001-0632; Amnesty International, 099-3896.

602. There is information that villagers had to make bricks for the NaSaKa in Maungdaw township, which the NaSaKa then sell. See Karen Human Rights Group, 001-0565; Amnesty International, 064-2962.

603. There is information that villagers were forced to work on charcoal- and brick-making projects throughout the Division; for military brick kilns in Yebyu township; and by Battalion 280 for its brick kilns in Palaw township in 1997. Karen Human Rights Group, H24-6423, H24-6478; Mon Information Service, 043-2653.

604. The witnesses heard on this subject came from the following groups: Burman (1); Karenni (5); Karen (14); Mon (1); Muslim other than Rohingya (1); Pa-O (1); Rakhine (1); Rohingya (27); Shan (5); and Tai (1).

605. See statements of Witnesses 159, 163, 186 and 192.

606. See statement of Witness 97.

607. See statements of Witnesses 8, 19 and 73.

608. See statements of Witnesses 99 and 154. In the case of the Rohingyas, the confiscated land is sometimes redistributed to Rakhine people: see statements of Witnesses 18, 71 and 77.

609. See, in particular, statements of Witnesses 33, 40, 44 and 46.

610. See statements of Witnesses 95, 97 and 111.

611. See statements of Witnesses 177 and 186.

612. See statements of Witnesses 99 and 134.

613. See statements of Witnesses 8 and 156.

614. See statement of Witness 137.

615. See statements of Witnesses 21, 24, 99 and 146-148.

616. See statements of Witnesses 123, 151, 186 and 188.

617. See statement of Witness 190.

618. See statements of Witnesses 123 and 151.

619. See statement of Witness 127.

620. See statements of Witnesses 159 and 186.

621. See statements of Witnesses 163, 176, 184 and 186.

622. See statements of Witnesses 18, 145-148, 176 and 186.

623. See statements of Witnesses 93, 103, 124, 155, 176 and 204.

624. For example, Karen Human Rights Group, 001-0189.

625. See para. 156 above; the project is also described in Myanmar's state press, see Working People's Daily, H14-6099.

626. Human Rights Watch/Asia, 001-0051.

627. New Light of Myanmar, H14-6112.

628. See Heppner, XII/55-56; Liddell, V/18; Min Lwin, VI/1; Wa Wa, II/52-53. For a text of an order prohibiting the use of bullock carts on motor roads, see order 11 in Appendix XI.

629. Karen Human Rights Group, 001-0027, 001-0030, 032-2425; Liddell, V/18; Heppner, XII/13, 54. Forced labourers often produced poor-quality work, putting down branches covered with a thin layer of mud to level ground and build up embankments. One reason mentioned for this was that those forced to do the work would try to finish their assignments as quickly as possible, taking shortcuts at times when this would not be noticed.

630. Some of these prisoners were reported to be political prisoners. See Amnesty International, 064-2961, 085-3491, 098-3874; Karen Human Rights Group, 032-2429; Liddell, V/22-27; Lin, VII/10-11.

631. While soldiers had been more prominently used recently for tasks which were previously carried out with civilian forced labour, this was in the most part restricted to areas visible to foreigners; there was also information that in certain other cases where soldiers were seen working, the majority of the work was nevertheless carried out using civilian forced labour. See Karen Human Rights Group, 001-0632; Liddell, V/32-34; Lin, VII/49-50, 64; and para. 438 below. See also doc. 176.

632. Liddell, V/18; Heppner, XIII/10.

633. Heppner, XII/58.

634. kyin is a measure of volume equal to 100 cubic feet.

635. Heppner, XII/58.

636. Wa Wa, II/49; Lin, VII/42; Heppner, XII/64.

637. Wa Wa, II/46.

638. Wa Wa, II/45.

639. Payment of small amounts of money was made recently to labourers forced to work on infrastructure projects, primarily in areas visible to foreign visitors. See also Lin, VII/12-13; Heppner, XII/44-45. See also, UNHCR, 033-2435.

640. The official Government contract day labour wage was 10 kyat per day until 1988, 15 kyat per day from 1988 to 1993, and 20 kyat per day since 1993. In contrast, the market wage for dry-season day labour in rural areas appears to have been 60-80 kyat per day since the 94/95 fiscal year. See American Embassy in Rangoon, H13-6009, H13-6082. For a short period in 1996, villagers from Yebyu township were paid local market rates for labour on the project, and as a result some villagers reportedly went voluntarily.

641. Mon Information Service, 001-1229, 042-2620, 139-4435, 139-4439 to 4440; Human Rights Documentation Unit, M34-6965.

642. Heppner, XII/12.

643. Heppner, XII/54-55.

644. The only exception appeared to be among the Muslim population of Rakhine State, where because of cultural mores women rarely did forced labour; in this population the burden of forced labour thus fell entirely on the male members of the household.

645. Human Rights Watch/Asia, 001-0051.

646. Min Lwin, III/32-33.

647. Human Rights Watch Asia, 065-2968, gives the normal working day for labourers on a section of the Ye to Dawei (Tavoy) railway as 8 a.m. to 6 p.m.

648. Heppner, XII/64.

649. Human Rights Watch/Asia, 001-0051.

650. Lin, VII/38.

651.  Heppner, XII/31-35, 40-41.

652.  See Amnesty International, 090-3655. In 1994 and 1995 forced labour was used on construction of the section from Sumprabum to Putao, with 3,000 people reportedly taken from Putao to work on a remote area of the road construction in late 1994, scores of whom apparently died because of a lack of food at the work site. See Human Rights Watch/Asia, 001-0051.

653.  Karen Human Rights Group, 001-0574 to 0575, 032-2424, 032-2426.

654.  Images Asia, 001-0208 to 0209; Karen Human Rights Group, 001-0528 to 0529, 032-2424.

655.  Images Asia, 167-8301, 167-8306; Karen Human Rights Group, 028-2338, 154-5136 to 5138.

656.  Karen Human Rights Group, 001-0577.

657.  Karen Human Rights Group, 001-0557, 001-0566; Asia Watch, 107-3942.

658.  Karen Human Rights Group, 001-0534, 001-0652, 001-0693, 001-0695.

659.  Amnesty International, 001-0500; Mon Information Service, 008-2053 to 2058, 008-2062, 139-4436, 139-4440 to 4441; Karen Human Rights Group, 001-1367, 001-1371, 154-5040 to 5044, 154-5106, 154-5112 to 5114, H24-6424, H24-6469 to 6472.

660.  The network included the following roads. In Kayin State: Papun to Bilin (in Mon State), Papun to Kyauknyat (through Par Haik), Papun to Kamamaung, Saw Hta (in Papun district) to Kyaukkyi (in Bago Division), Hpa-an to Painkyone, Hpa-an to Zathabyin (through Shwe Taw), Hpa-an to Dawlan, Painkyone to Nabu (through Bee T'Ka), Way Sha (Kweshan) to Than Ma Ya Taung in Myawady township, Dawlan to Pata, Nabu to Eindu (through Dawlan), Nabu to Kyondo, Nabu to Kawkareik (through Myatpadine; a wooden bridge was constructed in 1995 as part of this project), Kya In Seik Gyi to Taungbauk, Kya In Seik Gyi to Chaung Wa (including construction of a wooden bridge at Chaung Wa in 1996), Kya In Seik Gyi to Kyeikdon, Kya In Seik Gyi to Kyondo, a bridge in Kya In Seik Gyi township in 1994, Thanbyuzayat (in Mon State) to Three Pagodas Pass, as well as many other small local roads throughout Kayin State. In Bago Division: Toungoo to Busakee (through Kaw Thay Der), Zayatkyi to Tantabin, Shwegyin to Kyaukkyi.

661.  Karen Human Rights Group, 001-0185 to 0186, 001-0189, 001-0192 to 0197, 001-0376, 001-0451, 001-0480, 001-0488, 001-0551, 001-0607 to 0609, 001-0619 to 0620, 001-0629, 001-0632 to 0637, 001-0904, 001-1342 to 1343, 001-1853 to 1854, 001-1988, 001-1994, 027-2286 to 2288, 027-2292 to 2293, 031-2393 to 2396, 031-2399, 031-2401, 154-4938, 154-4941, 154-5196, H21-6354, H25-6499, M49-7315 to 7316, M49-7350 to 7351, M50-7361, M49-7310, M49-7315 to 7316; Images Asia, 01-0208 to 0209, 001-0216; Human Rights Watch/Asia, 065-2965; Amnesty International, 091-3694, 093-3748, 099-3896.

662.  Amnesty International, 099-3896.

663.  Construction and improvement of the following roads was specifically mentioned: Haka to Thantlang, Haka to Falam, Haka to Gangaw, Haka to Matupi, Matupi to Mindat and Paletwa to Kuah Daw. It appeared that forced labourers on the Haka to Matupi and Matupi to Mindat roads were paid 25 kyat of a promised 100 kyat per kyin of rock crushed for the road (see Karen Human Rights Group, 154-5140 to 5142).

664.  028-2338 to 2340, 064-2962, 154-5136 to 5144, 167-8301, 167-8306 to 8307, M12-6812. The information included a number of orders from 1996 requiring civilians to provide labour for two of these road projects, the widening of the Haka to Thantlang road and work on the Haka to Gangaw road.

665.  In particular, the following roads were mentioned: from Salong (in Langkho township) to Mawkmai since 1992; breaking rocks for the construction of several roads in Langkho and Mawkmai townships in 1996 and 1997, including Langkho to Wan Hat and Wan Hat to Mawkmai; breaking rocks for a road from Mongping to Mong Hsat in 1996 and 1997; repairing the road from Mongkaing to Hsipaw, as well as other roads around Hsipaw, in 1996; a road from Laikha town to Panglong (in Loilem township) in 1996 and 1997; and a road from Laikha to Mongkaing in 1997. Villagers who had been relocated along the Laikha to Mong Nawng road were also forced to work on the construction of that road.

666.  Karen Human Rights Group, 001-0672, 001-0698; Amnesty International, 099-3895; Shan Human Rights Foundation, 144-4536 to 4537, 145-4553 to 4554, 145-4585, 147-4632, M34-6964; HRDU, M34-6961.

667.  These roads included Tanintharyi town to the Thai border at Mawtaung; Boke to Kyay Nan Daing (north of Myeik (Mergui)); from Tanintharyi town north to Ta Po Hta, as well as other roads in Tanintharyi and Thayetchaung townships. See Karen Human Rights Group, 001-1242, 154-5040 to 5044, 154-5106, 154-5112 to 5114, H24-6424, H24-6424, H24-6445, H24-6447, H24-6450 to 6465, H24-6469 to 6472, H24-6475 to 6483, H24-6485, H24-6487 to 6489; Mon Information Service, 139-4437 to 4439.

668.  The roads identified included Kaleinaung to Kanbauk and Ohnbinkwin, Pyingyi to Migyaungaing and Migyaunglaung to Eindayaza. Forced labour was also reportedly used for the construction of a bridge between Kadaik and Ohnbinkwin in 1995. See Karen Human Rights Group, 001-1120, 001-1124, 001-1359, 001-1367 to 1373. In relation to these roads, TOTAL informed the Commission that there was no specific pipeline road network in the area, but that in 1995-96, for the needs of the project, improvements had been made to the existing road network in this coastal area and had been carried out by a French company working under the supervision of TOTAL and respecting its code of conduct. This work had involved the use of modern civil works machinery and not in any event to recourse to forced labourers. See TOTAL, 165-8278 (summarized in para. 75 above).

669.  There was information that forced labour was used in 1996 on roads near the Shadaw relocation site, on a road from Demawso to the Daw Tama Gyi relocation site (through Tee Po Klo) in Demawso township, on a road to the Mar Kraw She relocation site in Pruso township, and on a road to Daw Ku Li in Loikaw township in 1997. See Amnesty International, 099-3896; Karen Human Rights Group, 154-5083, 154-5091 to 5093.

670.  There is information that people were forced to work on the widening of a section of the road from Ye to Dawei (Tavoy) near Ye in 1996; forced labour was also used on the repair of the Kyaikto to Bilin road, and on local roads in Ye and Mudon townships. See Karen Human Rights Group, 001-1341; Mon Information Service, 139-4438 to 4439.

671.  There is information that people were forced to work on the construction and improvement of a number of roads, including the following: Layshi to Somra in 1997; Layshi to Tamanthi, over many years; Layshi to Lahe; Homalin to Tamanthi in 1997; Kalaymyo to Tamu in 1995; a 14-mile road from Monywa to Ah Myint in 1995; and road projects in Tamu township in 1995. See HRDU, 001-0163 to 0164; Images Asia, 167-8338 to 8339.

672.  People were reportedly forced to work on the following road projects: Maungdaw to Kyein Chaung in 1995; providing stones for widening the road to the NaSaKa headquarters, in Maungdaw township; and other road improvement projects in Maungdaw and Buthidaung townships in 1996. See Human Rights Watch/Asia, 001-0051; Karen Human Rights Group, 001-0057 to 0058, 001-0565 to 0566; UNHCR, 033-2435, 113-3983; Amnesty International, 089-3610; Asia Watch, 107-3940 to 3942.

673.  The information indicated that in recent years people had been forced to work on a road from Shwelaung to Wakema and that in 1995/1996 people were also forced to construct a road from Talakwa, near Pathein (Bassein), to Nga Saw beach (30 km north of Chaungtha). See Karen Human Rights Group, 001-0652, 001-0695. As mentioned in para. 364, labourers were forced to clear land and build barracks for the troops supervising the work on this latter road.

674.  The workers were mainly from Ye township in Mon State and Dawei (Tavoy), Launglon, Thayetchaung and Yebyu townships in Tanintharyi Division.

675.  Human Rights Watch/Asia, 001-0052, 065-2967 to 2968, 150-4690; Amnesty International, 001-0500 to 0501; Karen Human Rights Group, 001-0527 to 0531, 001-1032, 001-1051 to 1052, 001-1060 to 1074, 001-1241, 001-1243, 001-1341, 001-1367, 001-1373 to 1374, 001-1843, 001-1940 to 1945, 015-2116, 018-2166, 018-2170 to 2172, 029-2370; Mon Information Service, 001-1223, 001-1228 to 1234, 008-2061, 042-2615 to 2644, 043-2653, 139-4435, 139-4439 to 4440; Images Asia, 001-1822 to 1823, 001-1826, 001-1829, 001-1835 to 1836; John Doe A, H20-6293, H20-6295; John Doe B, H20-6297; Jane Doe A, H20-6300 to 6301.

676.  Shan Human Rights Foundation/S.H.A.N., 001-0167 to 0170; Karen Human Rights Group, 001-0669; Amnesty International, 099-3897.

677.  Karen Human Rights Group, 001-0305, 001-0320, 032-2425, 032-2429; Amnesty International, 091-3700.

678.  Human Rights Watch/Asia, 001-0051; Karen Human Rights Group, 001-0553, 001-0561 to 0564, 001-0575 to 0576; Images Asia, 167-8327 to 8332.

679.  There were indications that this railway was being extended from Kalaymyo to Tamu on the border with India. See Images Asia, 167-8327.

680.  The distribution of witnesses by ethnic group to which they belonged is as follows: Burman (3); Karen (32); Chin (4); Rakhine (8); Shan (17); Karenni (5); Mon (10); Tai (1); Rohingyas (7); Moslems other than Rohingyas (8).

681.  The States and Divisions covered by the testimonies are as follows: Ayeyarwady, Bago, Chin, Kayah, Kayin, Magway, Mon, Rakhine, Sagaing, Shan and Yangon. The roads mentioned by witnesses are, in the Ayeyarwady Division, the major Ma-u-bin to Twantay and Einme to Pantanaw roads; in Bago Division, a road in Kyaukkyi township; in Chin State, the roads connecting Matupi to Paletwa and the Kaladan river, and roads between Haka and Thantlang and Haka and Gangaw; in Kayah State, the road network connecting Loikaw, Bawlake, Ywathit and Mawchi; in Kayin State, the major road network connecting Papun, Bilin, Hpa-an, Shwegun, Hlaingbwe, Painkyone, Dawlan, Yebu, Nabu, Kawkareik, Myawady, Kyondo, Kyeikdon and Three Pagodas Pass; in Mon State, the roads connecting Mawlamyine (Moulmein) to Yangon, and Thanbyuzayat to Anin and Setse; in Rakhine State, the road network in the north of the State connecting Ann, Buthidaung, Kyauktaw, Maungdaw, Minbya, Rathedaung and Sittway (Akyab); in Sagaing Division, the important road between Kalaymyo and Thantlang; in Shan State, the road network connecting Taunggyi, Aungban, Hopong, Yatsauk and Shwenyaung, and the road network connecting Laikha, Loilem, Mong Hsu, Mung Kung, Panglong, Lashio, Namtu and Mong Yai.

682.  Certain testimonies recount facts dating back to the early 1980s.

683.  See statement of Witness 154.

684.  See, in particular, the statements of Witnesses 162 and 180.

685.  See, in particular, the statement of Witness 173.

686.  See statement of Witness 170.

687.  See statements of Witnesses 220-228.

688.  See statement of Witness 180.

689.  See statement of Witness 133. Isolated cases do, however, refer to direct action on the part of the military; on this subject, see statement of Witness 170, a deserter from the Tatmadaw, who related that, while he was in Lashio (Shan State), in 1996, he had on three occasions been ordered to recruit people at random to send them to the Chinese border where they would work as porters or on road construction. He had thus forcibly recruited 170, 80 and 90 persons for this purpose on those three respective occasions.

690.  See statements of Witnesses 11, 12, 110, 119, 126, 174 and 214.

691.  See statements of Witnesses 119, 155, 159, 162, 175, 176, 180, 204 and 214.

692.  See statements of Witnesses 122, 131, 132, 138, 139, 159, 214 and 217.

693.  See statement of Witness 4. This witness, who comes from a family of magistrates, explained that he, together with other families of judges in his village, had to build, between 1 and 15 January 1995, a section of the road between Haka and Thantlang (Chin State).

694.  See statements of Witnesses 181, 186 and 244.

695.  See statements of Witnesses 165, 186 and 130.

696.  See statements of Witnesses 8, 37, 142 and 175.

697.  See statements of Witnesses 4, 12, 214 and 217.

698.  See statements of Witnesses 122 (6 a.m. to 5 p.m.); 130 (8 a.m. to 4 p.m.); 139 (8 a.m. to 5 p.m.); 142 (7 a.m. to 5 p.m.); 153 (8 a.m. to 5 p.m.); 156 (7 a.m. to 5 p.m.); 159 (6 a.m. to 6 p.m.); 184 (6 a.m. to 6 p.m.); 204 (6 a.m. to 6 p.m.); 231 (7 a.m. to 6 p.m.); 247 (6 a.m. to 5 p.m.).

699.  See statements of Witnesses 7, 142, 143, 144 and 186. Witness 143 specified that the workers were sometimes put in stocks as a punishment.

700.  See statement of Witness 157. This witness claimed to have seen, while working on the road between Bilin and Papun in 1993, two women, two young girls and five men shot dead by the military because they wanted to take a short break. He claimed that the women had first been raped.

701. See, in particular, the statement of Witness 217.

702. See statements of Witnesses 98, 106, 119, 122, 127, 131, 132, 137, 138, 139, 141, 142, 144, 162, 175, 176, 180, 183 and 186.

703. See, in particular, statements of Witnesses 110 and 183.

704. See statement of Witness 98.

705. See statements of Witnesses 12, 137, 142 and 186.

706. See, in particular the statements of Witnesses 122 (50 kyat), 131 (200 kyat per day), 132 (2,500 kyat for 10 days), 138, 139 (200 kyat for five days), 142 (100 kyat), 173 (500 kyat), 176, 180 (200 kyat per day), 214 (3,000 kyat for 15 days) and 220-228 (2,500 kyat per project).

707. See statement of Witness 150.

708. See statements of Witnesses 54, 68 and 76.

709. See statement of Witness 76.

710. See statements of Witnesses 8, 30, 34, 38 and 45. Workers may be chained, put in stocks or exposed to the blazing sun for hours on end: see statement of Witness 8.

711. The distribution of witnesses in respect of the work carried out on the railways is as follows: Burman (7); Chin (1); Karen (1); Karenni (9); Mon (14); Shan (8); and, Tavoyan (1).

712. This is the railway between Myitkyina (Kachin State) and Mandalay (Mandalay Division). The Witnesses' statement refers to the work that they claim was done by unpaid soldiers. See statement of Witness 5.

713. The railway between Aungban (Shan State) and Loikaw (Kayah State). See statement of Witnesses 84, 40, 90, 91, 93, 99, 106, 110, 113, 114.

714. The railway between Ye and Dawei (Tavoy) connecting Mon State and Tanintharyi Division. See statements of Witnesses 198-203, 211, 212, 220-225, 227, 228, 232, 233, 234-236.

715. The railway linking Bago town with Yangon. See statements of Witnesses 109, 119, 122, 129, 131, 134, 135 and 210.

716. See statements of Witnesses 91, 99, 106, 109, 122, 199, 200, 202 and 210.

717. See statements of Witnesses 91, 200 and 210. Only Witness 199 indicated that all members of his family of working age were obliged to go to the site. One person only remained behind to attend to household chores. Finally, Witness 190 declared that even government employees had to take part in the construction of these tracks, though they received more favourable treatment since they had to go only once a week and did not have to finish the task assigned.

718. See statements of Witnesses 112, 135 and 202. Witness 113 stated that all the villages in Kayah State took part in the construction of the State railways.

719. See statements of Witnesses 89, 91, 109, 122, 131, 201, 210, 211, 212 and 220. Witness 198 stated that she had to go to her work assignments carrying her infant with her.

720. See statement of Witness 90.

721. See statement of Witness 93.

722. See statement of Witness 99 who even saw prisoners die on the work site because of the wretched working conditions.

723. See statements of Witnesses 90, 91, 112 and 131.

724. See statements of Witnesses 122, 198 and 200.

725. See statements of Witnesses 106 and 114.

726. See statements of Witnesses 112, 119, 134, 199, 201 and 210.

727. See statement of Witness 232.

728. See statements of Witnesses 90, 91, 198, 201 and 210.

729. See statements of Witnesses, 89-91, 99, 109, 119, 129, 131, 198, 201, 210, 212 and 220.

730. See statements of Witnesses 91, 99, 210 and 211.

731. See statements of Witnesses 89, 90 and 99.

732. See statements of Witnesses 90, 91, 112, 119, 211 and 212. Witness 229, who was responsible for recruiting manpower for the railway track between Ye and Dawei (Tavoy), stated that the workers were paid 180 kyat per day.

733. See statements of Witnesses 106, 199, 202, 234 and 235. In 1996, Witness 203 claimed to have recruited labour for the Ye-Dawei (Tavoy) railway after having negotiated with the military for an amount of 1,200 kyat per kyin of embankment. When the work was completed, the military refused to pay and finally paid 700 kyat per kyin.

734. See statements of Witnesses 99, 112, 119, 122, 134, 198 and 212. It has been claimed that women are subjected to sexual exactions: see, in particular, statements of Witnesses 199 and 200.

735. See statements of Witnesses 109 (150 kyat), 112 (1,200 kyat), 131 (2,000 kyat for 20 days), 198 (1,000 kyat), 220 (2,500 kyat for two weeks) and 232 (150-200 kyat).

736. See statements of Witness 131 (2,500 kyat). Only Witness 119 declared that the authorities refused the replacement.

737. See statement of Witness 212 (3,000 kyat).

738. Recent locations include Sittway (Akyab), Rakhine State, in 1993; Dawei (Tavoy), Tanintharyi Division, in 1996; Haka, Chin State, in 1998.

739. See paras. 408-418 above.

740. The information indicated that people from several villages were forced in 1995 and 1996 to work on the construction of a large dam for hydroelectric power generation on the Pa Thi stream in Toungoo township, and that in 1995 people were forced to construct another dam, this time on the Kyauk Ke Kyi stream in Kyaukkyi township, to produce hydroelectric power for the army's Tactical Operational Command headquarters in Kyaukkyi. See Karen Human Rights Group, 001-0705 to 0708; Burma Issues, 001-0537.

741. Amnesty International, 089-3617.

742. There is information that a large number of people have been forced since 1994 to work on the construction of the Thazi dam in Monywa township. People from the Division were also forced to work on the construction of the Tant Sae dam in Salingyi township in 1995 and 1996, construction of the Phalan Kyin dam in Monywa township, irrigation projects on the Mu river near Shwebo in 1995 and on the Zee Chaung hydro project in Kalaymyo township from 1990 to 1996. See Karen Human Rights Group/HRDU, 001-0164 to 0165; Karen Human Rights Group, 154-5148; Images Asia, 167-8332 to 8337.

743. The Nam Wok (Mong Kwan) dam project near Kengtung, completed in 1994. See Karen Human Rights Group, 001-0028; Heppner, XII/56-57.

744. 5,000 people were reportedly forced to work on the construction of a dam in Thayetchaung township in 1995; forced labour was also used for its repair in 1996. See Mon Information Service, 001-1280.

745. There is information that in 1994 thousands of people were forced to dig a canal from Taikkyi township to Hmawbyi township. See Shan Human Rights Foundation, 001-0364.

746. Karen Human Rights Group, 001-1118, 001-1367 to 1372.

747. John Doe IV, 067-3046 (the location of the helipad was given, but not included in the affidavit for the protection of the witnesses).

748. TOTAL, 165-8278 (communication summarized in para. 75 above): "la plupart des hélipads situés sur le parcours même du gazoduc ont été construits par TOTAL ou par des sociétés travaillant pour TOTAL et appliquant son code de conduite [TOTAL ignorant] dans quelles conditions [auraient] été réalisés d'autres hélipads dans la région".

749. Images Asia, 167-8313.

750. People were reportedly forced to work on the renovation of a pagoda near Hsipaw in 1996. See Karen Human Rights Group, 001-0698.

751. For the construction of a pagoda in Palaw township. See Karen Human Rights Group, H24-6487.

752. As part of the development of the Kabaw valley since 1991, local Christians were forced to construct a Buddhist monastery. See Images Asia, 167-8347.

753. The information indicated that in 1996 people from Toungoo township were forced to work on the excavation and restoration of the Bayintnaung Palace in Toungoo, a site of significant historical importance. See Karen Human Rights Group, 001-0707.

754. There is information that in 1995, a large number of people in Mandalay Division were forced to clean the Mandalay Palace and dredge the moat. It had been suggested that this was in preparation for "Visit Myanmar Year 1996". See Karen Human Rights Group, 001-0574 to 0575, 032-2424, 032-2426.

755. This work was from 1991 to at least 1995, and was reportedly on land confiscated from local people. See Karen Human Rights Group, 001-0556 to 0557.

756. The information related to construction of a school in Falam township, Chin State (Images Asia, 167-8307); the construction of a school in Tichara village in Myawady township, Kayin State in 1995 and 1996 (Karen Human Rights Group, 001-0549 to 0550, 001-0618 to 0619); the completion of a clinic in Kanbauk village in Yebyu township, Tanintharyi Division (Karen Human Rights Group, 001-1125); construction of a school and a clinic as part of the development of the Kabaw valley in Sagaing Division since 1991 (Images Asia, 167-8347).

757. There was information that forced labour was used in Chin State during 1997 on infrastructure for the 8th national Student Sport Festival which, although planned for 1997, actually took place in Haka from 29 March to 8 April 1998. In preparation for the festival, people from Haka were forced to extend a football ground, build a stadium, and construct local roads. See Karen Human Rights Group, 154-5144. In Rakhine State, people were also forced to provide construction materials and carry out other work in relation to the 1993 national Student Sport Festival which was held in Sittway (Akyab). See written statement submitted by Witness 10, M07-6648.

758. There is information that forced labour was used in 1995 on the construction of the Sittway Hotel, at the beach near Sittway (Akyab), and in 1994 for construction of a hotel south of Ngapali, projects which were reportedly owned by senior members of the State Law and Order Restoration Council (SLORC). See Karen Human Rights Group, 001-0560.

759. The Commission was provided with a copy of an order from the military to the village head demanding the construction of a toilet at a village south of Kawkareik in 1995. The order stated that "drastic action" would be taken against the village if it did not build itself a toilet. See 027-2295.

760. The information indicated that forced labour was used since December 1994 for the construction of a 30-mile fence in Mohnyin township in Kachin State. See Mirante, I/51-52.

761. Karen Human Rights Group, 001-1120, 001-1124.

762. TOTAL, 165-8278 (communication summarized in para. 75 above): "il n'est pas vrai que des travaux de nettoyage aient peu être réalisés par des travailleurs forcés dans le but de faciliter l'accès aux équipes du projet. Au cours des années 1993 et 1994, l'enlèvement de la végétation (le "clearing") [aurait] été assuré, sous [le contrôle de TOTAL], par la compagnie générale de Géophysique (CGG)".

763. Certain events recounted refer to facts which occurred before these dates: see, in particular the statement of Witness 230 concerning the construction of an airport at Mawlamyine (Moulmein) in 1988.

764. The distribution of persons who provided this information is as follows: Burman (4); Chin (1); Karenni (3); Karen (5); Mon (3); Muslim other than Rohingya (1); Rakhine (3); Rohingya (1); and Shan (1).

765. See statements of Witnesses 14, 217, 219, 238 and 243.

766. See statements of Witnesses 234 and 235.

767. See statements of Witnesses 17, 210 and 230.

768. See statement of Witness 3.

769. See statement of Witness 74.

770. See statement of Witness 13.

771. See statements of Witnesses 190 and 192.

772. See statement of Witness 129.

773. See statement of Witness 177.

774. See statements of Witnesses 10, 13, 99 and 110.

775. See statement of Witness 177.

776. See paras. 427-443 above.

777. Several witnesses mentioned that the order was transmitted by the village head or section leader (see statements of Witnesses 3, 96, 117, 219 and 243); others mentioned orders coming from the Ward LORC (see statement of Witness 13), or even from the District LORC (see statements of Witnesses 230, 234, 235 and 238).

778. See statements of Witnesses 170 and 210.

779. The towns and villages are divided according to their size.

780. See statements of Witnesses 14, 219 and 238.

781. See statement of Witness 219.

782. ibid.

783. See statements of Witnesses 13, 219, 234 and 235.

784. See statement of Witness 219.

785. ibid.

786. The amounts of money which had to be paid for a replacement vary, the statements specifying amounts ranging from 50 to 3,000 kyat (see, in particular, statements of Witnesses 13 (150 kyat), 96 (50 kyat), 217 (3,000 kyat) and 219 (1,500 kyat)).

787. See statement of Witness 219, who claimed to have seen workers put in stocks and exposed to the blazing sun for hours on end.

788. On this last point, see the statement of Witness 99.

789. Karen Human Rights Group, 032-2425 to 26; Human Rights Watch/Asia, H07-5797 to 99.

790. Karen Human Rights Group, 001-0028, 032-2425 to 26.

791. Karen Human Rights Group 001-0534.

792. See also statement of Witness 217.

793. Karen Human Rights Group, 032-2425.

794. See statement of Witness 99.

795. See statement of Witness 96.

796. See statement of Witness 237.

797. Human Rights Watch/Asia, H07-5798.



13. Findings as to compliance with the Convention

468. Obligations under the Convention. As indicated above for States having ratified the Convention,(798) under Article 1(1) of the Convention, the Government of Myanmar must neither exact forced or compulsory labour nor tolerate its exaction, and it must ensure the repeal of any laws and statutory or administrative instruments that provide or allow for the exaction of forced or compulsory labour, so that any such exaction, be it by private persons or public servants, is found illegal in national law.

469. In this chapter, the Commission will set out its findings as to whether the Government of Myanmar has complied with its obligations under the Convention as regards national laws, statutory and administrative instruments as well as actual practice. In doing so, the Commission will also refer to the exceptions provided in Article 2(2) of the Convention(799) and the present status of Article 1, paragraph 2, and Article 4 et seq. of the Convention.(800) Furthermore, in setting out its findings as to the compliance of national law and practice with the obligations under the Convention, the Commission will address the issue of enforcement of the prohibition of forced labour under Article 25 of the Convention.(801)

A. National laws and statutory or administrative
standard-setting instruments, considered in
the light of the Convention

(1) Provisions of the Village Act and the Towns Act
and subsequent orders and directives dealing
with the requisition of labour

(a) Applicability of the definition of forced labour

470. The Commission notes that section 11(d), read together with section 8(1)(g), (n) and (o) of the Village Act,(802) as well as section 9(b) of the Towns Act(803) provide for the exaction of work or services from any person residing in a village tract or in a town ward, that is, work or services for which the said person has not offered himself or herself voluntarily, and that failure to comply with a requisition made under section 11(d) of the Village Act or section 9(b) of the Towns Act is punishable with penal sanctions under section 12 of the Village Act or section 9A of the Towns Act.(804) Thus, these Acts provide for the exaction of "forced or compulsory labour" within the definition of Article 2(1) of the Convention.(805)

(b) Non-applicability of exceptions defined
in Article 2(2) of the Convention

471. The Commission notes that the provisions of the Village Act and the Towns Act under which residents may be required to perform forced or compulsory labour on a general or individual requisition of the headman are "widely worded", as was also noted in Executive Orders made under the Village Act;(806) indeed, residents are to assist the headman in the execution of his public duties,(807) which in turn include the duty to supply guides, messengers, porters, etc., to any troops or police posted near or marching through a village tract and generally to assist all officers of the Government in the execution of their public duties. Thus, the labour and services that may be exacted under the Village Act and the Towns Act are as indefinite as the needs of the Government; they are limited neither to emergencies nor to minor communal services as defined in Article 2, paragraph 2(d) and (e), of the Convention,(808) and more generally do not come under any of the exceptions listed in Article 2, paragraph 2.

(c) Expiration of the transitional period

472. In its observations on the complaint, the Government has not invoked Article 1(2) of the Convention which allowed for recourse to forced or compulsory labour during a transitional period, for public purposes only, and as an exceptional measure, subject to the conditions and guarantees provided in the Convention; neither has it done so on earlier occasions.(809) For the reasons mentioned above,(810) the Commission considers that use of a form of forced or compulsory labour falling within the scope of the Convention as defined in Article 2 may no longer be justified by invoking observance of the provisions of Article 1, paragraph 2, and Articles 4 to 24, although the absolute prohibitions contained in these provisions remain binding upon the States having ratified the Convention. Moreover, in the present case, the undertaking under Article 1(1) of the Convention to suppress the use of forced or compulsory labour in all its forms within the shortest possible period precludes the Government from having recourse to legislation that it had over many years declared obsolete and not applied.(811) The Commission nonetheless notes that the wide powers to requisition labour and services laid down in the Village Act and Towns Act are incompatible not only with the obligation to suppress the use of forced or compulsory labour under Article 1, paragraph 1, read together with Article 2 of the Convention, but also with the conditions and guarantees laid down in Articles 9 to 14 and 17 to 19 of the Convention to restrict and regulate recourse to compulsory labour pending its suppression.(812)

(d) Role of secret directives and payment of wages

473. Section 8(1)(g) of the Village Act provides for payments to headmen for the collection and supply of guides, messengers, porters, etc., but nowhere in the Village Act or Towns Act is provision made for any payment to residents called up for labour or services. The (secret) Order dated 2 June 1995 on "Prohibiting unpaid labour contributions in national development projects" stresses that "in obtaining the necessary labour from the local people, they must be paid their due share".(813) While Article 14 of the Convention provided for the remuneration of forced or compulsory labour exacted during the transitional period, the mere payment of wages for labour obtained through the call-up of local residents does not remove such labour from the scope of the definition of forced or compulsory labour in Article 2(1) of the Convention. Payment does not change the character of labour exacted compulsorily or by force; it merely becomes paid compulsory or forced labour. This follows not only from the definition in Article 2(1) itself (which does not address the issue of remuneration) but also from the very logic of Article 14, which deals with the remuneration of labour defined as forced or compulsory. Also, the "national development projects" to which the secret order refers do not come under any of the exceptions in Article 2(2) of the Convention, so that recourse to compulsory labour for such projects, even if fully remunerated, must be suppressed under Article 1(1) of the Convention. In summary, the (secret) Order dated 2 June 1995 did not exonerate the Government from its obligations under the Convention.

474. As set out above,(814) the (equally secret) directive (No. 82) dated 27 April 1995 "To stop obtaining labour without compensation from the local people in irrigation projects" in Yangon Division appears to go further towards suppressing recourse to forced labour than the secret order referred to in the previous paragraph, in that it mentions, in the unofficial English translation, the "hire" of paid labourers. However, the directive remains equivocal where it refers to stopping "the practice of obtaining labour from the local people without monetary compensation", which might allow for a continuation of the practice of "obtaining" labour from the local people, albeit with compensation. In any event, both texts are marked secret and thus appear not to be available to those who are supposed to benefit from them.

475. More importantly, evidence before the Commission on actual practice,(815) which is set out in Chapter 12 and which will be considered in section B of the present chapter,(816) shows the continued call-up of local people for labour and services (without any compensation).

(2) Legislation on citizenship and other instruments
bearing on the freedom of movement

476. The Commission notes that the sequence of legislative and administrative instruments progressively denying citizen status to the Rohingyas,(817) read together with the restrictions on the freedom of movement of foreigners,(818) as well as more general requirements aimed at controlling all movements of people(819) do not in themselves come within the scope of the Convention. Nonetheless they have a direct bearing on the possibility for people to avoid being called up as "residents" for forced or compulsory labour, under the Village Act and the Towns Act as well as in actual practice. This particularly affects the Rohingyas population in northern Rakhine State.

(3) Legislation on compulsory military service

477. The Commission notes that the provisions of the People's Militia Act, as adopted in 1959, appear to be covered by the exception in Article 2(2)(a) of the Convention.(820) The Commission is not aware of any subsequent modifications of the Act, nor does the Commission know whether the Act has been brought into force.(821) Where soldiers have been used on civilian development projects, as claimed by the Government,(822) involvement of conscripts would not have been compatible with the terms of the exception in Article 2(2)(a) of the Convention and would thus be contrary to the obligation under Article 1(1) of the Convention, whereas the use for such purposes of career soldiers having joined the armed forces on a voluntary basis, falls outside the scope of the Convention.

(4) Sanctions for illegally imposing forced
or compulsory labour

478. Section 374 of the Penal Code, quoted in paragraph 258 above, complies with the first requirement of Article 25 of the Convention, namely that "The illegal exaction of forced or compulsory labour shall be punishable as a penal offence". Whether the penalties under section 374, which may range from a fine to imprisonment of up to one year or both, do comply with the second requirement of Article 25 of the Convention, namely that they "are really adequate", could only be appreciated if they were "strictly enforced", as Article 25 of the Convention furthermore requires. In the absence of any indication that section 374 of the Penal Code was ever applied,(823) the Commission is bound to point out that penalties under that provision, as well as under Article 25 of the Convention, are to be imposed for the exaction of forced or compulsory labour that is found illegal. Thus, only a requisition of labour and services that is not covered by the very wide provisions of the Village Act or the Towns Act could, in theory, be punished at the present stage under section 374 of the Penal Code, while forced labour imposed in violation of the Convention but in conformity with the Village Act or the Towns Act might not be punishable at the national level. However, as set out in paragraph 204 above, any person who violates the prohibition of recourse to forced labour in international law is guilty of an international crime and thus bears an individual criminal responsibility. Under Principle II of the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal(824) and in the Judgment of the Tribunal, "The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law".(825)

B. National practice considered in the
light of the Convention

479. In this part of the chapter, the Commission will set out its findings as to compliance with the Convention of national practice, as established in Chapter 12. The Commission will consider the applicability of the definition given in Article 2(1) of the Convention and that of the exceptions listed in Article 2(2) to the various forms of labour and service described in Chapter 12, the relevance of the conditions and guarantees set out in Articles 4 to 24 of the Convention and, most importantly, the obligations of the Government under Articles 1 and 25 of the Convention with regard to national practice.

(1) Requisition of labour

480. System of call-up and variations. As indicated in Part B of Chapter 12(826) and confirmed by the evidence set out in Part C of Chapter 12,(827) a general pattern is apparent in the methods used by the authorities across the country to requisition labour:

481. Copies of several hundred orders addressed to the village head or ward administration officials were submitted to the Commission;(830) none of these make any reference to powers under the Village Act or the Towns Act(831) or under any other legislation. Nevertheless, the machinery used for the requisition of the labour and services of residents, as described in Chapter 12 and referred to above, generally follows the pattern laid down in the Village Act and the Towns Act -- with the notable exception of cases in which civilians are directly rounded up by troops for portering, be it in an organized or random fashion.(832)

482. "Menace of any penalty".(833) As indicated above,(834) orders for the requisition of labour or services do not make reference to powers under the Village Act or the Towns Act or any other legislation. Neither do they specifically refer to the penalties laid down in section 12 of the Village Act and section 9A of the Towns Act for failure to comply with a requisition,(835) although a few of the orders that were submitted to the Commission refer in general terms to punishment under the legislation in force.(836) However, as indicated in Part B of Chapter 12(837) and confirmed by the evidence set out in Part C of Chapter 12,(838) the written orders to provide porters and labourers which are sent to village heads by the local military or civil administration typically contain some overt or implied threat to anyone refusing to comply.(839) Penalties and reprisals imposed in practice for failing to comply with labour demands are very harsh and include physical abuse,(840) beatings,(841) torture,(842) rape(843) and murder.(844) Also, in order to be exempted from labour assignments given to them, people have to pay sums of money,(845) and likewise people directly rounded up by troops for portering may obtain their release only by paying a substantial sum of money.(846) Thus, the labour and services imposed in practice on the civilian population by formal requisition or direct round-up, as evidenced in Chapter 12, are covered by the definition given in Article 2, paragraph 1, of the Convention, which refers to "all work or service which is exacted from any person under the menace of any penalty(847) and for which the said person has not offered himself voluntarily" -- the only exception being labour or services performed by any substitutes hired by some of those called up for labour or services.

483. Prison labour. Besides the requisition or round-up of residents of villages and wards, the evidence reflected in Chapter 12 also points to the use of prison labour for portering(848) as well as public works projects.(849) The Convention exempts from its scope "any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations".(850) Prima facie, these conditions appear to be met where prison labour is used by the authorities.(851) However, the findings of the Commission are that in certain cases, assignments given to prisoners shortly before they were due to be released extended beyond the expiration of their sentence.(852) In such cases, the work or service exacted from these persons is no longer the consequence of a conviction in a court of law and becomes forced labour under the Convention,(853) since they did not volunteer for the assignment and cannot leave it, under the menace of punishment no lesser than that held out to the general population.(854)

(2) Requisition of labour for various purposes,
considered in the light of the exceptions in
Article 2(2)(a), (b), (d) and (e) of the Convention

484. In the following section, the Commission will examine the applicability of the exceptions listed in Article 2(2)(a), (b), (d) and (e) of the Convention to the various types of work or services, reflected in Chapter 12, for which the population is being called up or rounded up.

(a) Portering

485. Portering, done by civilians for the military, is neither "exacted in virtue of compulsory military service laws" nor "part of the normal civic obligations of the citizens of a fully self-governing country", and thus does not come under the exceptions in Article 2(2)(a) or (b) of the Convention.

486. As regards Article 2(2)(d) of the Convention, concerning work or service exacted in cases of emergency, including war, the Commission has noted(855) that the concept of emergency under the Convention involves a sudden, unforeseen happening that endangers the existence or well-being of the population and calls for instant countermeasures, which must be strictly limited in duration and to the extent required to meet the danger. While the conflicts between the Myanmar Government and a number of national minorities and other groups over many years may be considered as having taken the form of armed conflicts, the Government itself has stated in 1992 to the International Labour Conference that it was "no longer conducting military campaigns".(856) Even while it was, the requisition or round-up of civilians for portering, as reflected in the many testimonies submitted to the Commission, had not been in reaction to a case of emergency, as described above, but was merely the habitual way for the armed forces and paramilitary units to shift to the civilian population the burden of any labour they wished to be done and which otherwise would have to be performed by army personnel. None of the oral testimonies before the Commission concerning portering refers to a situation that would qualify as an emergency under Article 2(2)(d) of the Convention. Since portering for the military would neither come under "minor communal services" as defined in Article 2(2)(e), this pervasive practice is altogether outside the scope of what is admitted by Article 2(2) of the Convention, with the only exception of convicted prisoners required to do portering during the term of their sentence (Article 2(2)(c) of the Convention).

(b) Military camp work and other work in
support of the military

487. The work exacted from civilians for the construction, maintenance, repair and cleaning of military camps, for cooking, collecting water or firewood, washing clothes and acting as messengers for the camps is described in paragraphs 351 to 373 above. Other tasks that civilians are forced to perform, such as acting as guides for the military, as human shields, as minesweepers and as sentries are set out in paragraphs 374 to 388. None of this work is "exacted in virtue of compulsory military service laws" and none is "part of the normal civic obligations of the citizens of a fully self-governing country". Thus, the exceptions in Article 2(2)(a) and (b) are not applicable; nor is Article 2(2)(e), dealing with "minor communal services".

488. What has been stated above(857) to explain why forced portering does not come under Article 2(2)(d) of the Convention, which concerns work or service exacted in cases of emergency, applies all the more to work exacted from civilians for the construction and servicing of military camps -- work that is unrelated to any emergency in the sense of a sudden, unforeseen happening that endangers the existence or well-being of the population and calls for instant countermeasures. Similarly, most of the services exacted in the way of acting as guides, human shields, minesweepers and sentries are routinely imposed on residents and not related to any sudden, unforeseen happening that calls for instant countermeasures. Moreover, where civilians are forced to act as guides, human shields, minesweepers or sentries for the military, there may be a real danger to the existence or well-being of part of the population, but that is the kind of danger for which the exigencies of the situation would call on the military to protect the civilian population, while the forced labour exacted in Myanmar in such cases shifts the dangerous tasks from the military to the civilian population. This is contrary to the concept of "emergency" expressed in the Convention. In Myanmar, the civilian population is forced to protect the military. Thus, the work imposed on residents for military camps and in support of the military does not come under any of the exceptions in Article 2(2) of the Convention.

(c) Forced conscription

489. Findings of the Commission set out in Chapter 12(858) indicated that there was regular forced recruitment throughout Myanmar, including that of minors, into the Tatmadaw and various militia groups, and that this did not occur pursuant to any compulsory military service laws, but arbitrarily.

490. As indicated above,(859) the provisions of the People's Militia Act, as adopted in 1959, which provide for compulsory military service,(860) appear covered by the exception in Article 2(2)(a) of the Convention, but the Commission is neither aware of any subsequent modifications of the Act and does not know whether the Act has been brought into force.

491. In view of its insufficient knowledge of the state of the relevant legislation, and in the absence of meaningful evidence gathered directly by the Commission to confirm the factual information submitted concerning forced recruitment, the Commission has not reached a finding on the compatibility or not of any military conscription with the Convention.

(d) Work on agriculture, logging and other
production projects

492. According to the findings reached in Chapter 12, villagers, and to a lesser extent urban residents, are forced to work on a variety of projects undertaken by the authorities, in particular the military throughout the country. These projects include cultivation of rice, other food crops, cash crops such as rubber, fish and shrimp farms, kilns for producing bricks, logging and manufacturing activities, which are likely to enable the military either to meet their material needs or produce profit. The military mobilize the Myanmar population, forcing the people to carry out these activities for the military in difficult conditions without any share in the results.(861) This forced labour does not correspond to any of the five exceptions from the scope of the Convention listed in Article 2, paragraph 2.(862) In particular, it does not come under "minor communal services", inter alia, because it is not "performed by the members of the community in the direct interest of the said community";(863) nor is such labour related to any emergency, i.e. "any circumstance that would endanger the existence or the well-being of the whole or part of the population".(864)

(e) Construction and maintenance of roads,
railways and bridges

493. As the Commission details in Chapter 12, there is large scale use of forced labour across the whole population on the construction of roads and railways.(865) With regard to the cases in which prisoners or members of the armed forces were required to work on such projects,(866) the Commission refers to the explanations given above concerning the compatibility or not of such assignments with the Convention.(867) As regards the ordinary civilian population which supplies the vast majority of the labour called up for the construction and maintenance of roads, railways and bridges, and leaving aside the cases in which freely employed workers were employed on such work,(868) their call-up for such work comes under the definition of forced or compulsory labour in the Convention(869) and needs to be examined in the light of the exceptions provided for in Article 2, paragraph 2, of the Convention.(870)

494. The requisition of the population for the construction and maintenance of roads, railways and bridges does not come under the exceptions concerning compulsory military service (Article 2(2)(a) of the Convention), normal civic obligations of the citizens of a fully self-governing country (Article 2(2)(b)), prison labour (Article 2(2)(c)) or emergency work required by an event endangering the existence or the well-being of the whole or part of the population (Article 2(2)(d)). Neither does the construction or maintenance of railway lines come under "minor communal services" (Article 2(2)(e) of the Convention).(871) This follows from the sheer size of the projects,(872) which turn upon national or regional needs, rather than communal interests, from the numbers of workers and workdays involved,(873) the distance between the worksite and the workers' villages(874)  as well as from the absence of consultation.(875)

495. Similarly, with regard to the construction and maintenance of roads and bridges, the Commission has reached the following conclusions on the evidence before it, in the light of the criteria in Article 2(2)(e) of the Convention which determine the limits of the exception for "minor communal services".(876) The Commission, as set out in Chapter 12, found that forced labour was used on the construction or improvement of major roads linking towns in many parts of the country as well as the construction of extensive networks of roads between towns and villages, particularly in areas recently occupied by the military after offensives against opposition groups, or roads linking army camps to these networks or to one another, and the building of roads to sites of (forced) relocation.(877) Call-up of labour for these works places a heavy burden on the population, all the more since roads often have to be repaired or completely rebuilt after every rainy season.(878)

496. Thus, the findings of fact set out in Chapter 12 regarding the construction and maintenance of roads and related infrastructure show that the work is neither "minor" nor turns upon the interests of a local community, but that it is imposed either in the wider interests of national or regional development, or for the specific needs of the military. Moreover, roads built or renovated are reserved for the exclusive use of the authorities,(879) and in the view of those forced to work on such projects, they would not benefit from them, in part because local forms of transport (such as bullock carts) are not permitted to use these roads, built for motor vehicles, which the vast majority of villagers do not own.(880) Finally, the work is imposed by the military, without consultation of the local communities in regard to the need for such services,(881) as required in Article 2(2)(e) of the Convention. The Commission concludes that by all criteria that are applicable under the Convention, the exaction of labour throughout Myanmar for the construction and maintenance of roads and bridges, as well as railway lines, does not come under any of the exceptions in Article 2, paragraph 2, of the Convention.

(f) Other infrastructure work

497. In section 7 of Chapter 12 of the present report, the Commission has set out its findings(882)  concerning a range of infrastructure projects (beyond the construction of roads, railways and bridges) for which people across Myanmar were forced to contribute their labour. What has been stated above for roads, railways and associated infrastructure(883) also applies to these projects. There is no basis for linking them to the exceptions in the Convention concerning military service, normal civic obligations, prison labour or emergencies (Article 2(2)(e) to (d)). The applicability or not of the exception concerning minor communal services in Article 2(2)(e)(884) will be considered in the following paragraphs for the various types of work involved.

498. As regards the use of great numbers of forced labourers on major projects for the building and repair of dams,(885) hydroelectric power stations,(886) the digging of a canal linking two townships,(887) irrigation projects,(888) the construction of airports,(889) or work on electricity lines linking one major village to a town,(890) the size of these works or the large number of people or the geographical spread of the call-up or a combination of all these means that all these projects go far beyond the scope of "minor communal services", as defined in Article 2(2)(e) of the Convention.

499. Also, the call-up of large numbers of workers (including non-Buddhists) over four years to build a Buddha museum in the capital city of Rakhine State(891) and the use of forced labour for the excavation and restoration of a palace, a site of significant historical importance, or the cleaning of another major palace of national importance and the dredging of its moat,(892) or for the building of a 30-mile fence in Kachin State,(893) or the building of a stadium and construction of local roads for a national Student Sport Festival held each year in a different town,(894) all exceed the purview of minor communal services and turn upon the needs or interests of a community that is different from, and wider than, that to which the persons called up belong.

500. Similarly, the forced transport of logs for telephone line poles to and from a river by people from different villages,(895) the construction of helipads(896) and hotels,(897) the call-up of Rohingya residents to build new villages for Buddhist Rakhines,(898) the call-up of labour, including that of non-Buddhists, for the construction and renovation of pagodas and the construction of a monastery,(899) are all performed in the direct interests of persons, entities or wider communities that cannot be identified with the communities to which those doing the work belong.

501. Finally, the building of a new primary school or clinic in a village,(900) the digging of drainage trenches in a town,(901) or the building of a public toilet in a village,(902) appear to be performed by members of the community in the direct interest of the community. But the call-up of persons once a week or three times a month, for one or two days, for digging drainage trenches(903) by far exceeds the scope of "minor" communal services, which must relate primarily to maintenance work and only in exceptional cases to the building of new facilities(904) and should not normally exceed a few days per year. Also, these criteria are not met where persons required to build a new school are simultaneously called upon to perform other forced labour.(905) As for the building of a public toilet in a village, which would appear to come undisputably under "minor communal services", the authoritarian manner in which the villagers were ordered to do the work(906) follows the routine of the military authorities that does not include any consultation of the members of the community or their direct representatives in regard to the need for the services in question and thus violates the prerequisites of Article 2(2)(e) of the Convention.

(g) General work

502. Where urban residents are called up to carry out regular tasks such as cleaning and beautifying public areas, roads, the school and hospital compound, the area around a lake or at an army camp,(907) the criteria set out in section (f) above also apply: while cleaning an army camp would not be performed in the direct interest of those called up to do the work, most of these other tasks might by their nature and purpose come within the purview of "minor communal services". But the call-up of one person per household for one day per weekend for such work(908) exceeds by far the boundaries of "minor communal services", which should not normally involve more than a few days' work per year,(909) and the apparent absence of any consultation of those concerned or their direct representatives also falls short of the standards of Article 2(2)(e) of the Convention.

(3) Requisition of labour, considered in the light
of the prohibitions in Article 4 et seq. of the
Convention

(a) Residual relevance of Article 4 et seq.
of the Convention

503. In its observations on the complaint, the Government has not invoked Article 1(2) of the Convention, which allowed for recourse to forced or compulsory labour during a transitional period, subject to the conditions and guarantees provided in the Convention.(910) As indicated above,(911) use of a form of forced or compulsory labour falling within the scope of the Convention as defined in Article 2 may no longer be justified by invoking observance of the provisions of Article 1, paragraph 2, and Articles 4 to 24, although the absolute prohibitions contained in these provisions remain binding upon the States having ratified the Convention. In this regard, the Commission noted that the wide powers to requisition labour and services laid down in the Village Act and Towns Act are incompatible not only with the obligation to suppress the use of forced or compulsory labour under Article 1, paragraph 1, read together with Article 2 of the Convention, but even with the provisions of Articles 9 to 14 and 17 to 19 of the Convention.(912) The information provided to, and evidence gathered by, the Commission shows that national practice as set out in Chapter 12 likewise violates both the obligation to suppress the use of forced and compulsory labour(913) and specific prohibitions contained in Article 4 et seq. of the Convention.

(b) Violation of specific prohibitions

504. To the extent that the produce of, or income generated through, forced labour on projects undertaken by the military for the cultivation of rice, other food crops, or cash crops such as rubber, on shrimp farms, brick kilns and logging activities goes to individuals within or outside the military unit concerned,(914) or that forced labour is used by private contractors(915) or on the construction of hotels owned by private interests,(916) the imposition of forced labour not only violates the obligation to suppress the use of forced or compulsory labour(917) but also the specific prohibition to impose or permit the imposition of forced or compulsory labour for the benefit of private individuals, companies or associations, contained in Article 4, paragraph 1, of the Convention.

505. In their supplementary evidence submitted by a letter dated 31 October 1996, the complainants have alleged "that people living in the vicinity of the (Yadana) gas pipeline route are regularly forced to work (on the) construction of the pipeline route itself, and on related infrastructure", explaining that "Work on the pipeline route has mainly consisted of clearing the jungle by hand. Related infrastructure work has included construction of barracks in the area to house SLORC battalions moved into the region to provide security for the pipeline."(918)

506. As regards the allegations regarding the ground clearance work mentioned in paragraph 505, the Commission refers to its findings concerning the facts set out in paragraph 452 above, where it indicated that, since the Commission was denied access to Myanmar to supplement its evidence, no finding on this matter could be made.

507. As regards the construction of barracks for military battalions in the region of the pipeline, the Commission considers that even if the battalions are in the region to guard the pipeline, in the absence of further information concerning the security arrangements made between the Government and the private company or companies involved in the pipeline project, forced labour used for the construction of military barracks cannot prima facie be held to be imposed for private benefit in the strict sense of Article 4 of the present Convention.

508. Construction of the Ye-Dawei (Tavoy) railway was also mentioned by the complainants in connection with the installation of the Yadana gas pipeline(919) while such a connection was denied by TOTAL.(920) The Commission considers that the use of forced labour for the construction of the Ye-Dawei (Tavoy) railway(921) does not come under Article 4 of the Convention, it being understood that this railway is a state undertaking, whether or not the private companies involved in the Yadana project are among its eventual customers.(922)

509. Finally, as indicated in the Commission's findings concerning the facts, the Commission, having been denied access to Myanmar, was unable to make a finding as to whether TOTAL, companies working for TOTAL or the Yadana gas pipeline project were the beneficiaries of those helipads built in the region of the Yadana gas pipeline for which there is information that they were constructed with forced labour.(923)

510. Whether or not the forced labour used on different worksites considered in paragraphs 505 to 509 above was imposed for private benefit in the sense of Article 4 of the Convention, the use of forced labour constitutes a breach of the obligation of the Government to suppress the use of forced or compulsory labour in all its forms.(924)

511. In violation of the absolute prohibition in Article 11, paragraph 1, of the Convention, forced or compulsory labour is widely imposed on women,(925) including pregnant women and nursing mothers,(926) children below the age of 18(927) who may be as young as 12(928) or 10 years(929) of age and who would otherwise be at school(930) and persons above the age of 45(931) as well as persons otherwise unfit for work,(932) for portering,(933) messenger service,(934) camp building,(935) sweeping roads to detect mines,(936) sentry duty,(937)  building roads and railways(938) and other infrastructure works.(939)

512. While Article 14, paragraph 1 of the Convention provided for "remuneration in cash at rates not less than those prevailing for similar kinds of work", forced labourers in Myanmar are paid only in exceptional circumstances(940) and then below market rates.(941) Persons serving as porters are in fact never paid,(942) except when hired as substitutes by those actually called up,(943) and, rather than being paid, some pay to be exempted from serving.(944) Those doing forced labour for the building or maintenance of military camps not only are not paid, neither for their work nor for any land confiscated from them,(945) but even have to bring the necessary materials such as wood, plaster or cement,(946) and again, some of those called up to pay in order to be exempted, or hire replacements.(947) Persons called up to perform guard duty(948) and villagers forced to work on agriculture, logging and other production projects(949) are not remunerated in any way, people forced to work on roads and railways are not normally paid, only in exceptional circumstances and then below market rates,(950) and workers called up for other infrastructure projects are not paid either.(951) Likewise, compensation for death or injury, required by Article 15 of the Convention, appears to be minimal in the case of porters (whose families are not normally notified)(952) and not to be given in most cases where workers are injured on road or railway building projects.(953)

513. Article 19(1) of the Convention prohibits the recourse to compulsory cultivation otherwise than "as a method of precaution against famine or a deficiency of food supplies, and always under the condition that the food shall remain the property of the individuals or the community producing it". In Myanmar, villagers are not only forced by the military to grow rice and other food crops in the absence of a risk of famine, but they are also compelled to grow and harvest cash crops, and in either case the produce is used or sold by the military and never remains the property of the individuals or the community producing it.(954)

(4) Punishment of the illegal exaction
of forced or compulsory labour

514. Under Article 25 of the Convention, "The illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and it shall be an obligation on any Member ratifying this Convention to ensure that the penalties imposed by law are really adequate and are strictly enforced". As indicated above, it appears that section 374 of the Penal Code, which provides for the punishment of those unlawfully compelling any person to labour against the will of that person,(955) is not being applied in practice, and persons exacting forced labour in Myanmar are not being punished.(956) In so far as some of the forced or compulsory labour exacted in violation of the Convention may be imposed in conformity with the provisions of the Village Act or the Towns Act that are themselves contrary to the Convention,(957) the necessary amendments to those provisions of the Village Act or Towns Act may have to be brought into force before the corresponding exaction of forced or compulsory labour becomes "unlawful" in national law and punishable under article 374 of the Penal Code.(958) However, the provisions of the Village Act and the Towns Act authorizing recourse to compulsory labour had at some stage been declared obsolete(959) and are in practice never invoked when imposing forced or compulsory labour.(960) Moreover, there are a number of instances of exaction of forced labour, in particular where people are directly rounded up by the military for compulsory service without a requisition of the village head or ward authorities,(961) which even under the very wide provisions of the Village Act and the Towns Act appear unlawful in national law and should have given rise already to prosecution under article 374 of the Penal Code. The lack of enforcement in practice of article 374 of the Penal Code violates the obligations of Myanmar under Article 25 of the Convention.

 


798. Para. 205 above.

799. See paras. 207 to 213 above.

800. See paras. 214 to 218 above.

801. See para. 205 above.

802. See the text in paras. 238 and 239 above.

803. See the text in para. 240 above.

804. See the text in paras. 239 and 240 above.

805. See para. 206 above.

806. See para. 243 above.

807. Section 9(b) of the Towns Act and section 11(d) of the Village Act, read together with section 8(1)(g), (n) and (o) of the Act.

808. See the criteria of the Convention in paras. 212 and 213 above.

809. See paras. 121 and 145 above.

810. See para. 218 above.

811. See paras. 217 and 122 et seq. above.

812. See paras. 215 et seq. above and the full text of the Convention in Appendix XIII. However, with regard to compensation for accidents or sickness under Art. 15 of the Convention, see para. 72 of the Executive Orders made under the Village Act, quoted in para. 247 above.

813. See para. 245 above.

814. See para. 246 above.

815. See paras. 299 et seq., in particular 408 et seq. and 444 et seq. above.

816. See para. 479 et seq.

817. See paras. 251 to 254 above.

818. See paras. 249 and 250 above.

819. See para. 249 and its second footnote (296) above.

820. See paras. 255 and 256 above.

821. See para. 257 and its footnote above.

822. See para. 115 above and the evidence in paras. 412 and 438.

823. See para. 284 above for indications that it was not.

824. cf. para. 204, second footnote (213).

825. Yearbook of the International Law Commission 1950, Vol. I, p. 374. See also La Rosa, Dictionnaire de droit international pénal, PUF, Paris, 1998, p. 69.

826. See in particular para. 286 et seq. above.

827. See paras. 302 et seq., 340 et seq., 367 et seq., 384, 390, 429, 430, 437, 455 and 459 above.

828. See paras. 286, 287, 292, 302, 340, 367, 384, 390, 430, 437, 455 and 459 above.

829. See paras. 302, 307, 308, 328, 329, 330, 333, 341, 343, 367 and 455 above.

830. Only a few samples are included in Appendix XI.

831. See paras. 237 to 240 above.

832. See paras. 302, 307, 308, 328, 329, 330, 333, 341, 343, 347, 367 and 455 above.

833. See Art. 2, para. 1, of the Convention.

834. See para. 481.

835. See paras. 239 and 240 above.

836. See Appendix XI.

837. See paras. 289, 292 and 295 above.

838. See paras. 302, 307, 312, 317, 340, 349, 350, 367, 373, 376, 387, 414, 418, 429, 433, 434, 441 and 442.

839. See paras. 289, 340 and 429.

840. See paras. 292, 343, 367, 418, 433, 435 and 441.

841. See paras. 292, 311, 317, 349, 376, 413 and 418.

842. See paras. 292, 418 and 435.

843. See paras. 292, 418 and 441 and its footnote (734).

844. See paras. 311, 317, 349 and 418.

845. See paras. 295, 312, 373, 387, 414, 434 and 442.

846. See paras. 302 and 307. Moreover, beyond the many instances where people are called up or directly rounded up for labour or services, there are cases where households, unable to comply with various tax payments imposed on them, are required to supply additional labour or services in lieu of the tax payments -- see para. 295 above.

847. For the notion of "penalty", see also para. 206 and its second and third footnotes (220 and 221) above.

848. See paras. 303 and 349, second footnote (461) above.

849. See paras. 412 and 438 above.

850. Art. 2(2)(c) of the Convention.

851. As regards the condition that the work be the "consequence of a conviction in a court of law", information brought to the attention of the Commission did indicate however that convictions in Myanmar were often not the result of a fair trial. It was indicated that this was particularly the case for political prisoners, who until 1992 were regularly tried by military tribunal. In July 1989 Martial Law Order No. 2/89 established military tribunals with authority to waive "unnecessary" witnesses, indict offenders without hearing prosecution witnesses and reject the recalling of witnesses who had already testified. No right of appeal was provided for, except to the Commander-in-Chief of the Armed Forces. Military tribunals were empowered to give three kinds of sentence: not less than three years' imprisonment with labour, life imprisonment or the death penalty. Martial Law Order No. 2/89 was revoked by Order No. 12/92, issued on 26 Sep. 1992. See Liddell, V/24-27; Lin, VII/10B12. See also Amnesty International, 090-3646 to 47, 091-3681.

852. See para. 303 above and Liddell, V/23.

853. See para. 206 above.

854. See para. 482 above.

855. See para. 212 above.

856. See para. 132 above.

857. Para. 486.

858. Paras. 278 and 389 to 393.

859. Para. 477.

860. See paras. 255 to 257 above.

861. See paras. 394 to 407 above.

862. See paras. 207 to 213 above.

863. Art. 2(2)(e) of the Convention.

864. Art. 2(2)(d) of the Convention.

865. See paras. 408 to 443 above.

866. See paras. 412 and 438 above.

867. See paras. 477 (concerning soldiers) and 483 (concerning prison labour) above.

868. Besides the cases in which the work was performed by substitutes hired by those households or individuals which had been called up to contribute labour (see paras. 480 and 482 above), the evidence submitted to the Commission includes the testimonies of two labour contractors who worked with their groups of 216 and about 100 contract (wage) labourers, respectively, on the Ye-Dawei (Tavoy) railway construction alongside many other workers performing forced labour (Witnesses 203 and 229), and of two contract labourers who paid for getting a job at the Ye-Dawei (Tavoy) railway construction site and left after six months of work without being paid (Witnesses 234 and 235). Moreover, one foreign company operating in Myanmar (TOTAL) testified it had improvements made to the road network in its area of activity with the use of modern equipment and without recourse to forced labour -- para. 75 above and the last footnote (668) to para. 421 above.

869. See paras. 206 and 480 to 482 above.

870. See paras. 207 to 213 above.

871. See the criteria in para. 213 above.

872. See paras. 408, 424 to 426 and 436 above.

873. See paras. 408 and 411 above.

874. See para. 413 above.

875. See para. 437 (and 429) above.

876. See para. 213 above.

877. See paras. 420 to 422 and 427 above.

878. See paras. 410, 411 and 436 above.

879. See para. 429 above.

880. See para. 409 above.

881. See para. 429 above.

882. See paras. 444 to 457 above.

883. See para. 494 above.

884. See para. 213 above and the findings on roads and railways in paras. 494 to 496 above.

885. See para. 447 above.

886. See paras. 447 and 454 above.

887. See para. 447 above.

888. See paras. 447 and 454.

889. See paras. 448 and 454.

890. See para. 454 and statement of Witness 129.

891. See para. 449 and footnote 755 above.

892. See para. 449 and footnotes 753 and 754 above.

893. See para. 451 and footnote 760 above.

894. See para. 451 and footnote 757 above.

895. See statement of Witness 177, referred to in para. 454, footnote 773.

896. See para. 448 above.

897. See para. 451, footnote 758.

898. See statement of Witness 74, referred to in para. 454.

899. See para. 449, footnotes 749 to 752.

900. See statements by Witnesses 190 and 192, referred to in para. 454, as well as information quoted in para. 450.

901. See statements by Witnesses 234 and 235, referred to in para. 454.

902. See para. 451, footnote 759.

903. See statements by Witnesses 234 and 235, referred to in para. 454 above.

904. See para. 213 above.

905. See statements by Witnesses 190 and 192.

906. See the order referred to in footnote 759 to para. 451.

907. See paras. 458 and 461 above.

908. See paras. 459 and 461 above.

909. A call-up for one day per week, i.e. 52 days per year, comes close to the upper limit that had been set in Art. 12(1) of the Convention for what was tolerated during a transitional period (see paras. 214 to 218 above) while being defined as forced and compulsory labour in the full sense of the Convention, and not coming under the exception in Art. 2(2)(e).

910. See para. 472 above.

911. See paras. 218 and 472 above.

912. See para. 472 above.

913. See paras. 479 to 502 above.

914. See paras. 394 and 396 above.

915. See para. 449, footnote 750 above.

916. See para. 451, footnote 758 above.

917. Art. 1, para. 1, of the Convention.

918. See Appendix I, part III.B.1, 2nd para. and its footnote 92.

919. See Appendix I, part III.B.1, 3rd para. and its footnote 96.

920. See para. 54 above.

921. See paras. 423 and 436 et seq. above.

922. See the allegations in Appendix I, part III.B.1, 3rd para. and their rejection in para. 54 above.

923. See para. 448 above.

924. Art. 1, para. 1, of the Convention.

925. See paras. 291, 302, 308, 314, 317, 323, 334, 342, 343, 353, 368, 375, 384, 416, 437 and 456.

926. See para. 308.

927. See paras. 291, 302, 314, 323, 343, 368, 375, 384, 416, 430, 437 and 456.

928. See para. 430.

929. See paras. 342 and 456.

930. See para. 368.

931. See paras. 291, 302, 323, 416 and 430 (up to 72 years of age).

932. See paras. 302 and 323.

933. See paras. 302, 308, 314, 317, 323, 334 and 343.

934. See para. 353.

935. See para. 368 above.

936. See para. 375 above.

937. See para. 384 above.

938. See paras. 416, 430 and 437 above.

939. See para. 456 above.

940. See paras. 312, 314 and 433 above.

941. See para. 314 above.

942. See paras. 312, 338 and 348 above.

943. See para. 312 above.

944. See paras. 302 and 312 above.

945. See para. 351 above.

946. See para. 369 above.

947. See para. 373 above.

948. See para. 387.

949. See paras. 395 and 406 above.

950. See paras. 415, 433 and 440 above.

951. See para. 457 above.

952. See para. 319 above.

953. See para. 414 above.

954. See paras. 394 to 407 above.

955. See para. 258 above.

956. See para. 284 above.

957. See para. 470 et seq. above.

958. With regard to criminal responsibility in international law, see however paras. 204 and 478 above.

959. See paras. 122 et seq. above; see however the reversal in paras. 145 and 237 above.

960. See para. 481 above.

961. See paras. 480 and 481 above.

 

Part V

Conclusions and recommendations

 


14. Conclusions and recommendations

515. Before setting out its conclusions and recommendations, the Commission wishes to address two preliminary questions which relate to the lack of adequate participation by the Government of Myanmar in the proceedings and the Government's claim that the work of the Commission, and particularly the planned visit to Myanmar, constitute interference in the internal affairs of the country.(962)

(1) Preliminary questions

516. After examining the information submitted by the parties,(963) during its First Session, held in June 1997, the Commission invited the Government of Myanmar to communicate before 30 September 1997 any written statement it might wish to present, as well as the names and description of the witnesses which it wished to be heard during the hearings held from 17-20 and 25-26 November 1997. The Commission also requested the Government of Myanmar to give an assurance that it would not obstruct the attendance before the Commission of the witnesses called by the parties and that no sanction or prejudice to these witnesses and their families would be incurred as a consequence of their participation in the work of the Commission. Finally, the Government was also requested to designate the representative or representatives responsible for acting on its behalf before the Commission and for dealing with all relevant matters which might arise at the various stages of its work.

517. In a communication dated 10 November 1997, the Government of Myanmar informed the Commission that it was unable to provide within the time-limits established the names of the witnesses that it wished to be heard. Moreover, the Government did not appoint its representative to act before the Commission; nor did it provide the assurance requested by the Commission relating to the protection of witnesses and their families against reprisals.

518. The Commission's hearings were held without the benefit of the presence of the Government of Myanmar, although it had been duly informed of the dates on which they would be held, and the information received from the complainants and from other sources was transmitted to it in due time.(964) In this respect, the Commission concluded that the Government of Myanmar had abstained in full knowledge that it was not availing itself of its right to be present at the hearings. In these circumstances and considering the time that had elapsed since the filing of the complaint, the Commission considered that it had to proceed with its work in order to ensure that the complaint was examined expeditiously, avoiding all undue delay and thereby guaranteeing a fair procedure.(965)

519. Following that session, the Commission considered that it would be useful for it to visit Myanmar to supplement the information in its possession and it sent a letter to this effect to the Government of Myanmar on 28 November 1997. On 12 December, the Government of Myanmar informed the Director-General of the ILO that it could not authorize a visit by the Commission of Inquiry, on the grounds that, in its opinion, such a visit would not really contribute to resolving the matter and would be an interference in the internal affairs of the country.

520. With regard to the alleged interference in the internal affairs of the country, the Commission takes the view, as was done by a previous Commission of Inquiry,(966) that by virtue of its Constitution the ILO was established to improve conditions of labour and that it follows that the matters dealt with by the Organization no longer fall within the exclusive sphere of competence of States (domaine réservé). Therefore, the action taken by the Organization in this case, namely the institution of a Commission of Inquiry with full fact-finding and investigative powers, cannot be considered to be undue interference in internal affairs, since it falls precisely within the terms of reference that the ILO has received from its Members with a view to attaining the aims assigned to it. Moreover, the establishment of such a Commission of Inquiry by the ILO is explicitly provided for in the Constitution of the ILO and is only possible in cases in which the Convention in question has been ratified by the State against which the complaint is made.(967) Indeed, once a State has by a free and sovereign decision, not only joined the ILO but also ratified an international labour Convention, neither the establishment of a Commission of Inquiry nor its functioning are subject to the agreement or cooperation of the State concerned.

521. The objection based on undue interference in the internal affairs of Myanmar is thus devoid of any legal validity, particularly as article 27 of the Constitution of the ILO includes the undertaking by each member State to "place at the disposal of the Commission all the information in [its] possession which bears upon the subject-matter of the complaint". This provision clearly shows that member States, and a fortiori, the State which is the subject of the complaint, are under indeed an obligation to cooperate with the procedure and cannot, by a refusal to cooperate, prevent the functioning of the procedure.

522. The question nevertheless arises whether the non-cooperation of the Government of Myanmar has in practice had a bearing on the capacity of the Commission to establish the facts of the present case.

523. The Commission has sent voluminous documentation which it received since the beginning of the procedure to the Government for comment. It thus expected the Government of Myanmar to participate in the procedure, in particular by placing at its disposal information as to the facts and the law which would have facilitated its assessment of the situation and by giving it the possibility to visit Myanmar to meet both officials of the Government and other persons able to provide relevant information. However, in the absence of such cooperation, all information that the Government of Myanmar has provided to the Commission has been taken into account as carefully as possible, as well as the positions that the Government has adopted up to June 1996 before other ILO bodies, in particular, the Committee of Experts on the Application of Conventions and Recommendations, the Committee on the Application of Standards of the ILC and the Committee set up to consider the representation made by the International Confederation of Free Trade Unions (ICFTU) in 1993 under article 24 of the ILO Constitution alleging the non-observance of the Convention by Myanmar.(968) The Commission also took into account the information provided in the very substantial communications that it received and the numerous testimonies of persons with direct and recent experience of the situation in Myanmar as it relates to forced labour. In this context, the Commission considers that it had at its disposal factual information that was amply sufficient to enable it to make a precise assessment of the situation as a whole and to formulate its conclusions and make the recommendations required by the situation in relation to the allegations made in the complaint and the provisions of the Forced Labour Convention, 1930 (No. 29).

(2) Terms of reference of the Commission

524. By a letter dated 20 June 1996, 25 Workers' delegates presented a complaint under article 26 of the Constitution against the Government of Myanmar for non-observance of the Forced Labour Convention, 1930 (No. 29), which it ratified on 4 March 1995 and which came into force one year later.

525. In March 1997, the Governing Body set up a Commission of Inquiry in order to make an objective assessment of the situation raised in the complaint. On the same occasion, it appointed its members who, chosen for their impartiality and integrity, undertook in a solemn declaration, equivalent to that made by judges of the International Court of Justice, to carry out their tasks and exercise their powers "honourably, faithfully, impartially and conscientiously".(969)

526. Under the terms of article 28 of the Constitution of the ILO, the Commission should prepare a report embodying its findings on all questions of fact relevant to determining the issue between the parties and containing such recommendations as it may think proper concerning the steps which should be taken and the time within which they should be taken. In order to give full effect to its terms of reference, the Commission considered that its role was not to be confined to an examination of the information furnished by the parties themselves or in support of their contentions, but that the Commission should take all necessary measures to obtain as complete and objective information as possible on the matters at issue.(970)

527. It is therefore in this spirit of independence and impartiality that the Commission states its conclusions and presents recommendations as to the steps which should be taken to remedy the situation on those points on which it does not consider it to be satisfactory.

(3)  Conclusions on the substance of the case

528. There is abundant evidence before the Commission showing the pervasive use of forced labour imposed on the civilian population throughout Myanmar by the authorities and the military for portering,(971) the construction, maintenance and servicing of military camps,(972) other work in support of the military,(973) work on agriculture, logging and other production projects undertaken by the authorities or the military,(974) sometimes for the profit of private individuals,(975) the construction and maintenance of roads, railways and bridges,(976) other infrastructure work(977) and a range of other tasks,(978) none of which comes under any of the exceptions listed in Article 2(2) of the Convention.(979)

529. The call-up of labour is provided for in very wide terms under sections 8(1)(g)(n) and (o), 11(d) and 12 of the Village Act and sections 9(b) and 9A of the Towns Act, which are incompatible with the Convention.(980) The procedure used in practice often follows the pattern of those provisions, in relying on the village head or ward authorities for requisitioning the labour that any military or government officer may order them to supply;(981) but the provisions of the Village Act and the Towns Act were never actually referred to in those orders for the call-up of forced labourers that were submitted to the Commission;(982) it thus appears that unfettered powers of military and government officers to exact forced labour from the civilian population are taken for granted, without coordination among different demands made on the same population,(983) and people are also frequently rounded up directly by the military for forced labour, bypassing the local authorities.(984)

530. Failure to comply with a call-up for labour is punishable under the Village Act with a fine or imprisonment for a term not exceeding one month, or both, and under the Towns Act, with a fine.(985) In actual practice, the manifold exactions of forced labour often give rise to the extortion of money in exchange for a temporary alleviation of the burden,(986) but also to threats to the life and security(987) and extrajudicial punishment of those unwilling, slow or unable to comply with a demand for forced labour; such punishment or reprisals range from money demands(988) to physical abuse,(989) beatings,(990) torture,(991) rape(992) and murder.(993)

531. Forced labour in Myanmar is widely performed by women,(994) children(995) and elderly persons(996) as well as persons otherwise unfit for work.(997)

532. Forced labour in Myanmar is almost never remunerated(998) nor compensated,(999) secret directives notwithstanding,(1000) but on the contrary often goes hand in hand with the exaction of money,(1001) food(1002) and other supplies(1003) as well from the civilian population.

533. Forced labour is a heavy burden on the general population in Myanmar, preventing farmers from tending to the needs of their holdings and children from attending school; it falls most heavily on landless labourers and the poorer sections of the population,(1004) which depend on hiring out their labour for subsistence and generally have no means to comply with various money demands made by the authorities in lieu of, or over and above, the exaction of forced labour.(1005) The impossibility of making a living because of the amount of forced labour exacted is a frequent reason for fleeing the country.(1006)

534. The burden of forced labour also appears to be particularly great for non-Burman ethnic groups,(1007) especially in areas where there is a strong military presence,(1008) and for the Muslim minority, including the Rohingyas.(1009)

535. All the information and evidence before the Commission shows utter disregard by the authorities for the safety and health as well as the basic needs of the people performing forced or compulsory labour. Porters, including women, are often sent ahead in particularly dangerous situations as in suspected minefields, and many are killed or injured this way.(1010) Porters are rarely given medical treatment of any kind;(1011) injuries to shoulders, backs and feet are frequent,(1012) but medical treatment is minimal(1013) or non-existent(1014) and some sick or injured are left behind in the jungle.(1015) Similarly, on road building projects, injuries are in most cases not treated, and deaths from sickness and work accidents are frequent on some projects.(1016) Forced labourers, including those sick or injured, are frequently beaten or otherwise physically abused by soldiers, resulting in serious injuries;(1017) some are killed,(1018) and women performing compulsory labour are raped or otherwise sexually abused by soldiers.(1019) Forced labourers are, in most cases, not supplied with food(1020) -- they sometimes even have to bring food, water, bamboo and wood to the military;(1021) porters may receive minimal rations of rotten rice,(1022) but be prevented from drinking water.(1023) No clothing or adequate footwear is provided to porters, including those rounded up without prior warning.(1024) At night, porters are kept in bunkers or have to sleep in the open, without shelter or blankets provided, even in cold or wet situations, often tied together in groups.(1025) Forced labourers on road and railway construction have to make their own arrangements for shelter as well as all other basic needs.(1026)

536. In conclusion, the obligation under Article 1, paragraph 1, of the Convention to suppress the use of forced or compulsory labour is violated in Myanmar in national law, in particular by the Village Act and the Towns Act, as well as in actual practice in a widespread and systematic manner, with total disregard for the human dignity, safety and health and basic needs of the people of Myanmar.

537. Concurrently, the Government violates its obligation under Article 25 of the Convention to ensure that the penalties imposed by law for the illegal exaction of forced or compulsory labour are both really adequate and strictly enforced.(1027) While section 374 of the Penal Code provides for the punishment of those unlawfully compelling any person to labour against the will of that person,(1028) that provision does not appear to be ever applied in practice,(1029) even where the methods used for rounding up people do not follow the provisions of the Village Act or the Towns Act, which are in any event never referred to in practice.(1030)

538. A State which supports, instigates, accepts or tolerates forced labour on its territory commits a wrongful act and engages its responsibility for the violation of a peremptory norm in international law.(1031) Whatever may be the position in national law with regard to the exaction of forced or compulsory labour and the punishment of those responsible for it, any person who violates the prohibition of recourse to forced labour under the Convention is guilty of an international crime that is also, if committed in a widespread or systematic manner, a crime against humanity.(1032)

(4)  Recommendations

539. In view of the Government's flagrant and persistent failure to comply with the Convention, the Commission urges the Government to take the necessary steps to ensure:

(a) that the relevant legislative texts, in particular the Village Act and the Towns Act, be brought into line with the Forced Labour Convention, 1930 (No. 29) as already requested by the Committee of Experts on the Application of Conventions and Recommendations and promised by the Government for over 30 years,(1033) and again announced in the Government's observations on the complaint.(1034) This should be done without further delay and completed at the very latest by 1 May 1999;

(b) that in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military. This is all the more important since the powers to impose compulsory labour appear to be taken for granted, without any reference to the Village Act or Towns Act.(1035) Thus, besides amending the legislation, concrete action needs to be taken immediately for each and every of the many fields of forced labour examined in Chapters 12 and 13 above to stop the present practice. This must not be done by secret directives, which are against the rule of law and have been ineffective, but through public acts of the Executive promulgated and made known to all levels of the military and to the whole population. Also, action must not be limited to the issue of wage payment; it must ensure that nobody is compelled to work against his or her will. Nonetheless, the budgeting of adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour is also required;

(c) that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced or compulsory labour(1036) be strictly enforced, in conformity with Article 25 of the Convention. This requires thorough investigation, prosecution and adequate punishment of those found guilty. As pointed out in 1994 by the Governing Body committee set up to consider the representation made by the ICFTU under article 24 of the ILO Constitution, alleging non-observance by Myanmar of the Forced Labour Convention, 1930 (No. 29),(1037) the penal prosecution of those resorting to coercion appeared all the more important since the blurring of the borderline between compulsory and voluntary labour, recurrent throughout the Government's statements to the committee, was all the more likely to occur in actual recruitment by local or military officials. The power to impose compulsory labour will not cease to be taken for granted unless those used to exercising it are actually brought to face criminal responsibility.

540. The recommendations made by the Commission require action to be taken by the Government of Myanmar without delay. The task of the Commission of Inquiry is completed by the signature of its report, but it is desirable that the International Labour Organization should be kept informed of the progress made in giving effect to the recommendations of the Commission. The Commission therefore recommends that the Government of Myanmar should indicate regularly in its reports under article 22 of the Constitution of the International Labour Organization concerning the measures taken by it to give effect to the provisions of the Forced Labour Convention, 1930 (No. 29), the action taken during the period under review to give effect to the recommendations contained in the present report. In addition, the Government may wish to include in its reports information on the state of national law and practice with regard to compulsory military service.(1038)

(5)  Concluding observations

541. The Commission notes that in its resolution 52/137 adopted 12 December 1997, the General Assembly of the United Nations "urges the Government of Myanmar, in conformity with its assurances given at various times, to take all necessary steps towards the restoration of democracy in accordance with the will of the people as expressed in the democratic elections held in 1990 and to ensure that political parties and non-governmental organizations can function freely".(1039) The Commission further notes that in his report on the situation of human rights in Myanmar submitted 15 January 1998, the Special Rapporteur, Mr. Rajsoomer Lallah, recommended that "steps should also be taken to restore the independence of the judiciary and to subject the executive to the rule of law and render unjust and unjustifiable actions justiciable".(1040)

542. The Commission considers that the impunity with which government officials, in particular the military, treat the civilian population as an unlimited pool of unpaid forced labourers and servants at their disposal is part of a political system built on the use of force and intimidation to deny the people of Myanmar democracy and the rule of law. The experience of the past years tends to prove that the establishment of a government freely chosen by the people and the submission of all public authorities to the rule of law are, in practice, indispensable prerequisites for the suppression of forced labour in Myanmar.

543. This report reveals a saga of untold misery and suffering, oppression and exploitation of large sections of the population inhabiting Myanmar by the Government, military and other public officers. It is a story of gross denial of human rights to which the people of Myanmar have been subjected particularly since 1988 and from which they find no escape except fleeing from the country. The Government, the military and the administration seem oblivious to the human rights of the people and are trampling upon them with impunity. Their actions gravely offend human dignity and have debasing effect on the civil society. History shows that where human rights are denied or violated in any part of the world, it is bound to have a chain effect on the other parts of the world and it is therefore of vital interest to the international community that such denial and violation of human rights must be effaced from wherever it occurs. Every man, woman and child must be able to live with human dignity and become an equal participant with others in the enjoyment of the fruits of freedom, liberty and development. The Commission hopes and trusts that in the near future the old order will change, yielding place to the new where everyone in Myanmar will have an opportunity to live with human dignity and to develop his or her full potential in a freely chosen manner and there will be no subjection or enslavement of anyone by others. This can happen only if there is restoration of democracy where people as a whole can wield power for their common good.

Geneva, 2 July 1998.
 

(Signed) W. Douglas, Chairperson.

P.N. Bhagwati. R.A. Layton.

* * *

Having signed this report, the members of the Commission wish to thank Mr. Michel Hansenne, Director-General of the ILO and his staff for the assistance generously given to the Commission in carrying out its mandate.

The Commission is particularly grateful to Mr. André Zenger, Chief of the Application of Standards Branch who took part in all its sessions and accompanied the Commission on its visit to the region and to Mr. Max Kern, a senior official whose great expertise in labour standards was a vital contribution to the Commission's work. The Commission also wishes to thank Ms. Anne-Marie La Rosa, whose mastery of the principles of international law is matched by unusual clarity of thought and expression, and Mr. Richard Horsey whose knowledge of the region and its languages and whose lucidity of expression were so helpful to the Commission.

 


962. See above, para. 70.

963. For a detailed description of the measures taken at the First Session, see above paras. 17-27.

964. For more details on the work of the Second Session, see above, paras. 55-67.

965. See above, para. 58.

966. Report of the Commission instituted under article 26 of the Constitution of the International Labour Organization to examine the complaint on the observance by Poland of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), presented by delegates at the 68th Session of the International Labour Conference (1994), Official Bulletin, Vol. LXVII, Series 466, p. 122.

967. See the relevant articles reproduced above in para. 3.

968. See above, paras. 121-168.

969. See above, para. 8.

970. See above, paras. 12-16.

971. See paras. 300 to 350 above.

972. See paras. 351 to 373 above.

973. See paras. 374 to 388 above.

974. See paras. 394 to 407 above.

975. See paras. 394, 396 and 504 above.

976. See paras. 408 to 443 above.

977. See paras. 444 to 457 above.

978. See paras. 458 to 461 above.

979. See paras. 485 to 488 and 492 to 502 above.

980. See paras. 237 et seq. and 470 et seq. above.

981. See paras. 286 to 288 above.

982. See paras. 480 and 481 above.

983. See paras. 291 and 322 above.

984. See paras. 302, 307, 308, 328, 329, 330, 333, 341, 343, 349, 367, 455 and 481.

985. See paras. 239 and 240 above.

986. See paras. 302, 305, 307, 312, 373, 387, 414, 434 and 442 above.

987. See paras. 289, 340 and 429 above.

988. See paras. 343, 367, 414 and 433 above.

989. See paras. 292, 343, 367, 418, 433, 435 and 441 above.

990. See paras. 292, 311, 317, 349, 376, 413 and 418 above.

991. See paras. 292, 418 and 435 above.

992. See paras. 292, 418, 441 and its footnote (734) above.

993. See paras. 311, 317, 343 (footnote 437), 349 and 418 above.

994. See paras. 291, 302, 308, 314, 317, 323, 334, 342, 343, 353, 368, 375, 384, 416, 430, 437, 456 and 511 above.

995. See paras. 291, 302, 314, 323, 343, 368, 375, 384, 416, 430, 437, 456 and 511 above.

996. See paras. 291, 302, 323, 416, 430 and 511 above.

997. See paras. 302 and 323 above.

998. See paras. 312, 338, 348, 387, 395, 406, 415, 433, 440, 457 and 512 above.

999. See paras. 319, 414 and 512 above.

1000. See paras. 245 et seq. and 473 et seq. above.

1001. See, inter alia, paras. 295 and 443 above.

1002. See paras. 370, 372 and 404 above.

1003. See paras. 352 and 370 above.

1004. See paras. 296, 297 and 434 above.

1005. See paras. 295, 302, 307, 312, 373, 387, 434 and 443 above.

1006. See paras. 297, 339 and a number of oral testimonies.

1007. See para. 296 above.

1008. See paras. 355 et seq., 362 and 366 above.

1009. See paras. 296, 339 and 362. See also paras. 249 and 254, concerning restrictions on the freedom of movement and their bearing on the exposure to forced labour.

1010. See paras. 300, 328, 330, 332 and 346 above.

1011. See para. 318 above.

1012. See para. 314 above.

1013. See para. 319 above.

1014. See para. 348 above.

1015. ibid.

1016. See paras. 414 and 432 above.

1017. See paras. 317, 349, 372, 376, 385, 418, 432, 435, 441 and 457 above.

1018. See paras. 317, 346, 347, 349, 374, 418 and 432 above.

1019. See paras. 317, 343, 353, 372, 418 and 432 above.

1020. See paras. 338, 341, 370, 380, 387, 406, 414 and 433 above.

1021. See paras. 370 and 372 above.

1022. See paras. 316 and 348 above.

1023. See para. 316 above.

1024. See para. 315 above.

1025. See para. 320 above.

1026. See paras. 417, 433 and 440 above.

1027. See para. 514 above.

1028. See para. 258 above.

1029. See para. 284 above.

1030. See paras. 481 and 514 above.

1031. See para. 203 above.

1032. See paras. 204 and 478 above.

1033. See para. 122 et seq. above.

1034. See para. 119 above.

1035. See paras. 481 and 529 above.

1036. See para. 258 above.

1037. See para. 152 above.

1038. See paras. 477 and 489 to 491 above.

1039. UN doc. UNGA A/RES/52/137 of 12 Dec. 1997, para. 8.

1040. UN doc. CESE/CN.4/1998/70 of 15 Jan. 1998, para. 78.

 

Appendix I

Supplementary evidence submitted by
the complainants in October 1996


Supplementary evidence to the complaint
under article 26 of the Constitution of the
International Labour Organization submitted
on 20 June 1996 by the Workers' delegates
to the 1996 International Labour Conference
against the Government of Myanmar for
non-observance of ILO Convention No. 29
(31 October 1996)


Contents

Table of authorities

I. SUMMARY

A. Factual findings

B. Legal conclusions

II. PRIOR PROCEEDINGS AT THE ILO

A. Review by the Committee of Experts and the Conference Committee

B. The Article 24 Representation

III. FINDINGS OF FACT

A. Forced labour for public purposes

B. Forced labour for private benefit

C. The law of forced labour in Myanmar

IV. CONCLUSIONS OF LAW

A. The practice of forced labour in Myanmar is a breach of its international obligations under Convention No. 29

B. Myanmar's laws do not comply with Convention No. 29

C. No permissible exception under Article 2 applies

D. A transitional period does not apply in this case and, even if a transitional period applied, the Government of Myanmar has failed to demonstrate compliance with the guarantees that govern such a period

V. CONCLUSIONS


Table of authorities

ILO documents

Constitution of the International Labour Organization (1919).

Convention concerning Forced or Compulsory Labour, 1930 (No. 29).

Conference Committee documents: Records of Proceedings

Reports of the Committee of Experts

General Surveys of the Committee of Experts concerning forced labour

Governing Body reports

Other ILO documents

UN documents

Reports of the Special Rapporteur on the situation of human rights in Myanmar

Other UN documents

Universal Declaration of Human Rights, UN GA Res. 217A, UN doc. A/810 (1948).

International Covenant on Civil and Political Rights, UN GA Res. 2200 adopted 16 Dec. 1966, entered into forced 23 March 1976, UN GAOR 21st Session, Supp. No. 16. UN doc. A/6316.

Report of the Special Rapporteur on torture and other forms of cruel, inhuman or degrading treatment of punishment, 1994, UN doc. E/CN.4/1994/31 (6 Jan. 1994).

Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, 1994, UN doc. E/CN.4/1994/7 (7 Dec. 1993).

Laws and regulations of Myanmar

Villages Act 1908, printed in Burma Code, Vol. VI (1979) (English and Burmese versions).

Towns Act 1907, printed in Burma Code, Vol. VI (1979) (English and Burmese versions).

Penal Code, printed in Burma Code, Vol. VIII (1979).

SLORC Law No. 4/93.

SLORC Law No. 1/92.

SLORC Secret Directive No. 125.

SLORC Secret Directive No. 82.

Statements of the Government to UN

Statement by His Excellency U Ohn Gyaw, Chairman of the Delegation of the Union of Myanmar to the United Nations, New York (3 Oct. 1995).

Letter dated 18 March 1996 from the Permanent Representative of the Union of Myanmar to the United Nations Office at Geneva, Memorandum of observations and comments concerning document E/CN.4/1996/65 of 5 Feb. 1996 pertaining to the Union of Myanmar, UN doc. E/CN.4/1996/139 (21 Mar. 1996).

Memorandum of observations and comments submitted by the Ambassador of the Union of Myanmar to the United Nations, UN doc. E/CN.4/1996/139 (21 Mar. 1996).

Note Verbale dated 4 Nov. 1994 of the Permanent Mission of the Union of Myanmar to the United Nations Office at Geneva, containing the response to the Report of the Special Rapporteur, 1994, reproduced in the Interim Report of the Special Rapporteur in UN doc. A/49/594/Add.1 (28 Oct. 1994).

International decisions

Nuclear tests cases (Australia v. France) (New Zealand v. France). Judgement of 20 Dec. 1976, ICJ Reports.

Frontier dispute. Judgement, ICJ Reports, 1986.

Treatises

Nicolas Valticos, International labour law (1979).

Fact-finding reports

Amnesty International

Anti-Slavery International

Article 19

Australian Council for Overseas Aid

Asia Watch

Burma Action Group

Earth Rights International and Southeast Asian Information Network

Human Rights Watch/Asia

Images Asia

International Commission of Jurists

Lawyers Committee for Human Rights

US Committee for Refugees

United States Department of State

Other authorities

John Doe I., etc. et. al., v. Unocal Corp. et. al. Docket No. 96-6959 LGB (C.D. Cal.), complaint filed in US Federal Court, 3 Oct. 1996.

The National Coalition Government of the Union of Burma and the Federation of Trade Unions of Burma v. Unocal Inc.

Representation under article 24 of the ILO Constitution against the Government of Myanmar (formerly Burma), for its violations of the Convention concerning Forced or Compulsory Labour, 1930 (Convention No. 29 of the International Labour Organization), ratified by Burma in 1955, submitted by the International Confederation of Free Trade Unions on 25 Jan. 1993 to the Director-General of the International Labour Office.

Letter from Beth Stephens, Center for Constitutional Rights, dated 21 March 1995 to Mr. Roger Beach, CEO, Unocal Corporation.

"More information construction of Yangon-Mandalay Union Highway", Myanmar News Agency, 23 Jan. 1996.

Jeremy Mark, "Western firms remain hesitant about investing in Burma, in contrast to Asians' enthusiasm". Asian Wall Street Journal, week of 4 Sep. 1995.

David Ivanovich, "Protesters crash Unocal meeting", Houston Chronicle, 23 May 1995.

"Burma using forced labour on tourist projects", New York Times, 17 July 1994.

 


I. SUMMARY

This is presented as supplementary evidence to the complaint under article 26 of the Constitution submitted on 20 June by Workers' delegates to the 1996 International Labour Conference (footnote giving name/country) against the Government of Myanmar for non-observance of Convention No. 29 on Forced Labour (1930) which it ratified in 1955. The ILO's prior proceedings in this matter have included more than 30 years of review by the Committee of Experts, two special paragraphs by the Conference Committee, findings of non-compliance with the Convention by a committee established to examine a representation under article 24 of the ILO Constitution ("Article 24 Committee") and the subsequent adoption of those findings by the Governing Body of the ILO.

A. Factual findings

Myanmar is and has been conducting a widespread practice of exacting forced labour in the country. The practice, which affects hundreds of thousands of residents of Myanmar, involves the use of forced labour for public purposes as well as for private benefit. The labour is exacted from men, women and children of villages and towns in various parts of the country as well as from prisoners. Along with the forced labour, the military Government of Myanmar ("Government" or SLORC) is perpetrating severe physical and sexual abuses on many forced labourers including beatings, rape, executions and deliberate deprivation of necessary food, water, rest, shelter, and access to medical care.

Myanmar conducts forced labour practices for public purposes including the following: (1) portering, combat minesweeping, and sexual services for military troops; (2) construction and other heavy labour on development and infrastructure projects that do not benefit and, most often, harm the population from which forced labour is exacted; and (3) heavy work on military construction projects. Myanmar also conducts a practice of forced labour for private benefit in order to: (1) promote joint venture developments, including the country's oil and natural gas reserves; (2) encourage private investment in infrastructure development, public works, and tourism projects; and (3) benefit the private commercial interests of members of the Myanmar military.

Two laws currently in effect in Myanmar authorize forced or compulsory labour to be exacted from the people and provide for fines and imprisonment of those who fail to comply. Those laws, the Villages Act 1908 and Towns Act 1907, fall outside the scope of a law apparently in effect that makes "unlawful" exaction of labour a criminal offence. Other recently uncovered secret military directives implicitly legitimize forced labour practices on development projects by urging that payment be made to forced labourers and that the "misery and sufferings" associated with "undesirable incidents" during forced labour be curbed.

B. Legal conclusions

Myanmar has failed entirely to secure the effective observance of Convention No. 29. It deliberately engages in the practice of forced labour within the meaning of the Convention and commits gross human rights abuses in the context of that practice. It has refused to repeal laws that authorize the practice or to properly make the exaction of forced labour a penal offence. It further has refused to ensure that penalties imposed by law are really adequate and strictly enforced as required by the Convention.

The Government has sought to characterize the arrests and practice of forced labour under menace of threats, abusive practices, fines, and imprisonment as the voluntary contribution of the people of Myanmar pursuant to Buddhist cultural tradition. The evidence demonstrates not only that non-Buddhist minorities are at times subjected disproportionately to forced labour requirements, but also that the practice is conducted under threat of legal penalties and use of physical force.

The Government has represented that it will use only armed forces henceforth on, in its words, "major community development projects". That representation provides no assurances that the Government will stop the use of forced labour on other projects, including support and portering services for the military, or that forced labour on "major projects" could not resume at any time.

None of Myanmar's forced labour practices qualifies as an exception from the Convention's general prohibitions on the use of forced or compulsory labour. The practices fail to satisfy any of the following five narrow exceptions allowed under the Convention: compulsory military service; normal civic obligations; labour as punishment for duly convicted prisoners; circumstances of emergency threatening the population; and minor communal service. In addition, whether a forced labourer is paid makes no difference to the determination of whether the conduct qualifies under any of the five exceptions, despite the fact that the Government has sought to defend its practices by alleging that its forced labourers are paid.

No transitional period applies to exempt Myanmar from its obligation under Convention No. 29 to suppress forced labour in all its forms. The Committee established by the ILO to review the ICFTU's Article 24 Representation on forced portering in Myanmar determined that no transitional period applied. That finding is amply supported as a matter of fact and law. The 40 years since Myanmar ratified the Convention constitutes more than ample time to make required alterations to law and practice to conform to the Convention's requirements. Moreover, the Government itself has admitted that no transitional period applies; such admissions were made in the article 24 proceeding and recently in its observations made to the United Nations relating to reports of forced labour practices.

Finally, even if a transitional period applied in this case, the evidence demonstrates that none of the conditions and guarantees required to be met during the transitional period is satisfied in Myanmar. Forced labour is used for private benefit; forced labor is used widely and systematically as a regular part of the Government's budget; and the practice of forced labour is in no way limited to use as an exceptional measure. Further breaches of the conditions and guarantees required under the transitional provisions of the Convention include inadequate or non-existent regulation of forced labour practices; work that is not of important direct interest for the community from whom the labour is exacted and that is not of imminent necessity; work that lays too heavy a burden on the population; forced labour exacted as a tax without the safeguards required by the Convention, including allowing the forced labourers to remain at their habitual residence and respecting religion, social life, and agriculture; conscripting women, children, and men over 45 into forced labour; failing to limit forced labour duty to 60 days per year; failing to provide cash remuneration in rates of pay equal to the prevailing wage for voluntary labour and failing to observe normal working hours and a weekly day of rest; failing to apply workers' compensation laws and, in any case, meeting the responsibility of maintaining the subsistence of any person incapacitated as a result of performing forced labour; ensuring that people are not moved to different parts of the country in which their health may be affected or, where that is necessary, ensuring gradual acclimatization; for extended periods of forced labour, ensuring appropriate medical care and subsistence of the workers' families and providing for the cost of the workers' journeys to and from the workplace; and abolishing forced portering "within the shortest possible period" after ratification.

Based on the presentation of the facts and discussion of the law in this complaint, the complainants urge that the Governing Body establish a Commission of Inquiry to consider the complaint and to report on the situation in Myanmar. The complainants further recommend that, if established, the Commission of Inquiry should insist on procedures that ensure the safety of witnesses and their families. The complainants request that the Commission of Inquiry make factual findings and draw legal conclusions consistent with those in the complaint, and recommend that Myanmar take immediate remedial measures to comply with and respect the terms of Convention No. 29.

 


II. PRIOR PROCEEDINGS AT THE ILO

Myanmar ratified the ILO Convention concerning Forced or Compulsory Labour, 1930 (No. 29) ("Convention No. 29") on 4 March 1955.(1) Myanmar's compliance with its obligations under Convention No. 29 has been the subject of long-standing comment by the Committee of Experts on the Application of Conventions and Recommendations ("Committee of Experts") and by the International Labour Conference's Committee on the Application of Standards ("Conference Committee").(2)

A. Review by the Committee of Experts
and the Conference Committee

1. The Committee of Experts

For more than 30 years, the Committee of Experts has reviewed Myanmar's compliance under Convention No. 29. In the 1960s, the Committee examined the Government's practices under the Prisons Act, No. 9, 1894, Villages Act 1908 and Towns Act 1907.(3) In 1968, the Government indicated to the Committee that the Villages and Towns Acts were not in use and that it would consider the adoption of new laws to prohibit forced or compulsory labour. It further represented that forced labour was not used for public purposes in the country.(4) Reviews occurred periodically thereafter with no substantial change in the country's law or practice. In 1991, the Committee of Experts received a report from the ICFTU containing detailed allegations about the practice of forced portering, to which the Government failed to respond.(5)

In 1993, the ICFTU lodged a representation under article 24 of the ILO Constitution concerning the practice of forced portering in Myanmar ("Article 24 Representation").(6) Accordingly the Committee of Experts suspended its examination of this aspect of Myanmar's forced labour practices. The Committee of Experts also sought the Government's comments on forced labour practices other than portering alleged in the report of the Special Rapporteur on the situation of human rights in Myanmar appointed by the United Nations Commission on Human Rights.(7)

In 1995, the Article 24 Committee recommended that the Villages Act 1908 and the Towns Act 1907 be amended or repealed; and that there be necessary follow-up action including strict punishment of those subsequently having recourse to forced labour. The Committee of Experts expressed the hope that the Government would take corrective action, and noted that the powers provided in the Villages Act 1908 and the Towns Act 1907 allow for the exaction of forced labour.

Because the Government of Myanmar had not submitted a report under article 22 of the ILO Constitution, the Committee of Experts addressed the Government's response to the Article 24 Committee that there was no forced labour in Myanmar but rather a widespread cultural tradition of voluntary contributions of labour contemplated by Article 2(2)(e) of Convention No. 29.(8) The Committee noted that the work contemplated must be minor, and that the services must be performed in the direct interest of the community and not relate to the execution of works intended to benefit a wider group". The Committee of Experts indicated that "[t]he construction of a railroad would not appear to meet either of these criteria". The Committee further noted that the continuing existence of the powers provided in the Villages Act 1908 and the Towns Act 1907 made it "difficult to establish that residents performing work at the request of the authorities are doing so voluntarily".(9)

In 1996, the Committee of Experts reiterated its previous findings concerning the Villages Act and the Towns Act and its view that they provide for forced labour within the meaning of Convention No. 29. The Committee of Experts noted with concern the Government's response to the Conference Committee's request in 1995 for remedial action and a detailed report.(10) The Committee further noted that, ever since 1967, the Government had been stating that the Villages Act 1908 and the Towns Act 1907 had fallen into disuse, and that they were to be amended or repealed. The Committee remarked that: "[t]he Government's latest report persists in blurring the distinction between compulsory and voluntary labour and contains no indication whatsoever that concrete measures have been taken to abolish the powers to impose compulsory labour either in law or in practice".(11) The Committee requested the Government of Myanmar to supply full particulars to the International Labour Conference at its 83rd Session in June 1996.

2. The Conference Committee

In the last five years, the Government of Myanmar has been called before the Conference Committee three times concerning its obligations under Convention No. 29. On two of those occasions, its failures to comply have been mentioned in special paragraphs of the Conference Committee's report.

In 1992 the Conference Committee noted that the Government had not supplied its report under article 22 in time, and urged the Government to report to the ILO in the very near future.(12) A Government representative indicated to the Committee that: (1) there was no practice of forced labour in Myanmar; (2) porters who worked for the army did so voluntarily; (3) recruitment of porters was in accordance with section 8(1)(n) of the Villages Act 1908 and section 7(1)(m) of the Towns Act 1907; (4) there were conditions governing recruitment of porters; (5) porters were not mistreated or used in military roles; (6) they were entitled, among other things, to the same medical treatment as soldiers in the event of injury; and (7) comprehensive and elaborate laws effectively prevented the practice of forced labour on the ground.

In 1995, the Conference Committee "called upon the Government to urgently repeal the offensive legal provisions under the Villages Act 1908 and the Towns Act 1907 to bring them into line with the letter and spirit of Convention No. 29, to terminate forced labour practices on the ground, to provide for and award exemplary penalties against those exacting forced labour, and to furnish a detailed report on legislative and practical measures adopted to fall into line with Convention No. 29. The case was mentioned in a special paragraph of the Conference Committee's report(13)

In 1996, the Conference Committee again issued a special paragraph, in which it "once again firmly required the Government formally to abolish and urgently to cancel the legal provisions and to abandon all practices that were contrary to the Convention. The Committee urged the Government to prescribe truly dissuasive sanctions against all those having recourse to forced labour".(14) In a separate special paragraph the Conference Committee noted "with great concern" the case of Myanmar as one of continued failure to eliminate serious deficiencies.(15)

B. The Article 24 Representation

By letter of 25 January 1993, the ICFTU submitted a representation under article 24 of the ILO Constitution alleging non-observance by the Government of Myanmar of Convention No. 29.(16) The Governing Body established a committee to examine the representation, which issued its report on 7 November 1994.(17) The recommendations of the Article 24 Committee were subsequently adopted by the Governing Body, in November 1994.(18)

The ICFTU alleged that the Government of Myanmar had breached Convention No. 29 by institutionalizing "the use of forced labour by military commanders through the [practice of] forced recruitment and abuse of porters".(19) Based on credible reports the ICFTU alleged that men, women and children were routinely rounded up by police and the military to perform portering services under arduous and abusive conditions, including insufficient food, lack of medical care, minesweeping, rape and extrajudicial execution. The ICFTU further alleged that: (1) the practice of forced portering constituted forced or compulsory labour as defined in Convention No. 29; (2) no exceptions in the Convention were applicable; (3) Myanmar was not in any transitional period contemplated by Convention No. 29; (4) none of the guarantees and conditions applying to the practice of forced labour during the transitional period were being met by the Government of Myanmar; and (5) the Government of Myanmar had failed to comply with its obligation under Article 25 of Convention No. 29 to penalize those who exact forced labour from others.(20)

The Government of Myanmar communicated with the Article 24 Committee twice.(21) It asserted that: (1) there was no practice of forced labour or slavery but rather the population voluntarily contributes labour in pursuance of a centuries-old tradition of such voluntary contribution; (2) the military recruits and employs porters to support its campaigns against insurgent groups near the frontiers in accordance with relevant provisions of the Villages Act 1908 and the Towns Act 1907; (3) there was no truth in the varied allegations concerning the abusive nature of portering work and the conditions under which it is performed, and medical care was provided when necessary; and (4) the guarantees concerning the manner of performance of forced labour provided for in Articles 8-16, 18, 23 and 24 of Convention No. 29 were satisfied.(22)

The Article 24 Committee made the following findings and recommendations:

(a) the Villages Act 1908 and the Towns Act 1907 provide for the exaction of forced or compulsory labour under the menace of a penalty in breach of Convention No. 29;(23)

(b) the Government of Myanmar had "supplied no indications that would bring compulsory porterage within the scope of one of the exceptions provided for in Article 2, paragraph 2, of the Convention";(24)

(c) the Government of Myanmar had not invoked the concept of a transitional period in its responses to the Article 24 Representation. This was consistent with the position it had taken in its reports submitted under article 22 of the ILO Constitution concerning its compliance with its obligations under Convention No. 29. In those reports the Government had consistently stated that both the Villages Act 1908 and the Towns Act 1907 were obsolete colonial era laws, and that the powers they provided were no longer exercised;(25)

(d) compliance with the obligations in Article 25 of Convention No. 29 required the immediate repeal of the relevant provisions of the Villages Act 1908 and the Towns Act 1907, and also penal prosecution of those resorting to coercion of labour. The Article 24 Committee noted that "[t]his appears all the more important since the blurring of the borderline between compulsory and voluntary service labour, recurrent throughout the Government's statements to the Committee, is all the more likely to occur also in actual recruitment by local or military officials".(26)


III. FINDINGS OF FACT

The Union of Myanmar is conducting a widespread practice of forced labour for public purposes as well as for private benefit. Among the public purposes documented in this section are: (1) portering, combat, minesweeping and sexual services for military troops; (2) development and infrastructure projects to the detriment of the general population; and (3) military construction projects. As demonstrated below, the Government of Myanmar uses forced labour for private benefit in order to: (1) promote joint venture developments, including the country's oil and natural gas reserves; (2) encourage private investment in the tourist industry; and (3) benefit the private commercial interests of military members. As discussed in this section, the current law of Myanmar authorizes forced or compulsory labour to be exacted under the pain of penalty. That law overrides any government directive attempting to curb abusive practices relating to forced labour on development projects, and any law making exaction of forced labour a criminal offence.

A. Forced labour for public purposes

1. The Government of Myanmar uses forced labour
to perform portering, combat, minesweeping
and sexual services for military troops

Military campaigns in Myanmar are characterized by consistent, widespread and systematic use of the civilian population for portering duties. Along with portering, the forced labour duties have typically involved provision of minesweeping, combat and sexual services. One documented study has noted that "[t]he conscription of hundreds of thousands of porters (including from the Burman majority) has been reported in every ethnic minority state and every division of Burma".(27)

The contemporary practice of forced portering in the service of the Myanmar army (in Burmese "Tatmadaw"), has historical links to the time of Japanese occupation and British colonial rule.(28) The Government of Myanmar has variously denied that the practice exists, and claimed that when portering occurs it happens according to strict conditions, according to law, and at the voluntary offering of the people involved in the work.(29) Despite these statements, "the evidence is irrefutable that, in the absence of proper roads or transport, thousands of villagers are forced into carrying arms and supplies for all major military operations".(30) Since 1988, ex-army officers have confirmed that "for most military operations in the war-zones an average of one porter is taken along for each soldier on the mission".(31)

The vast majority of people who have worked as porters are forced to do so through various methods documented and corroborated by independent and reliable sources.(32) Village headmen are frequently notified of the quota of porters they must fill, and are under legal obligation to do so.(33) The only alternative is to pay large sums of money to the local military command, known as "porter fees". Arrest is a common means of obtaining porters, and unless a civilian has enough money to bribe the soldier(s) to let them go, there is no alternative but to work as porters. Apart from these more formal, or organized means of pressing civilians into work as porters, people are commonly rounded up by the local police or the military from public places such as movie theatres, coffee houses, video shows and train stations. They are put into trucks and taken away to serve as porters. In some cases they are taken long distances from where they are seized, in order to discourage them from trying to run away. As noted by the UN Special Rapporteur: "[m]any of the victims of such acts ... are peasants, women, daily wage-earners and other peaceful civilians who do not have enough money to avoid mistreatment by bribing".(34)

Calls into service appear to be arbitrary and widespread. One man explained that he had been arrested frequently to work as a porter, preventing him from carrying out his normal work as a carrier of goods: "In one year I'm taken as porter perhaps ten times, sometimes for ten days, sometimes for two months ...".(35) If the SLORC is conducting a major operation, military commanders will take hundreds or thousands of people to work as porters, depending on their perceived needs. Those needs are calculated mindful of the certainty that many porters will escape as soon as they can, and need to be replaced.

Considerable evidence reveals that men, women, children and the elderly alike are taken to serve as porters, despite claims by the SLORC that there are restrictions and requirements as to which people will be allowed to work as porters and under what conditions.(36) "[T]he army regularly takes porters indiscriminately ... when troops need a large number of porters, they take women aged 15 through 60 as well."(37)

Prisoners are among the civilians who have been pressed into service as porters for SLORC troops. Prisoners are made to work in leg chains and are singled out for especially harsh treatment.(38) Many prisoners who have been taken to work as porters have died at the front lines, often as a result of ill-treatment at the hands of SLORC troops.(39)

Documented reports and individual testimony of the circumstances in which civilians are forced to labour as porters demonstrate the abusive "working" conditions. Porters held in military custody carry loads of foodstuffs, ammunition and weapons that can weigh from 30 to 60 kilograms. They labour for long hours every day, and receive insufficient food, water and rest.(40) They rarely receive medical attention despite a wide range of illness and injury from which they suffer as a result of forced labour, including malaria. Along with disease, porters suffer wounds received during the course of battle or in minesweeping operations,(41) and injuries from the excessive loads they are made to carry. If any of these circumstances prevents porters from being able to continue work, the SLORC troops often abandon them where they collapse from exhaustion, without any medical care or assistance at all.(42)

Many porters suffer beatings and other forms of physical abuse at the hands of SLORC troops, often leaving them with severe injuries. The UN Special Rapporteur on Myanmar considered that some of the most serious human rights violations of which he had been informed occurred in the context of forced portering.(43) Abuses include beatings,(44) extrajudicial and summary executions,(45) and rape, including gang rape, of women who are taken for portering duties.(46)

Beating by soldiers with sticks and rifle butts when a porter cannot continue is commonplace.(47) Porters, who have escaped and been interviewed, have experienced and witnessed beatings. They describe being subjected to "physical abuse and inhumane treatment from the moment of capture ... [most] had been severely beaten ... when they slipped or fell from exhaustion, and all [interviewed] had witnessed the deaths of fellow porters".(48) At night. men and women porters are separated from each other. Many of the women are repeatedly raped by SLORC soldiers, at times in gang fashion.(49)

Porters have commonly been used in military roles, and many die as a result "Interspersed as human mules between soldiers in each marching column, they are thus brought directly into the frontline of the war".(50) Once they have arrived at the frontline, porters are frequently required to perform a number of military tasks. For example, although unarmed themselves, they have been placed at the head of columns to detonate mines and booby traps, and to spring ambushes. As noted by one investigative group, "[a] particularly disturbing aspect of the phenomenon ... concerns the military's practice of sometimes using civilian porters during frontline operations as 'human shields'".(51)

Commonly porters are sent as minesweepers to clear paths and fields where mines have been laid.(52) While the use of children as porters is objectionable per se, it is all the more disturbing that the SLORC does not protect children against requirements to perform military duties after conscription as porters.(53)

2. The Government of Myanmar uses forced labour
on development and public works projects that
are not in the direct interest of the community,
and in fact harm community life
(54)

(a) Forced labour practices on development projects are widespread
and affect hundreds of thousands of civilians

The widespread use of forced labour in Myanmar for development and construction projects touches the lives of a vast number of Myanmar's people, including men, women, children and the elderly. The total number affected reaches into the hundreds of thousands on various projects.(55) Forced labour is used in Myanmar for a wide range of projects, including infrastructure development, and tourist development projects.(56) Typical labour duties include the construction of roads, railway lines and airfields.(57) The military government has also forced many thousands of people to "contribute" their labour to tourist development projects as part of the preparation for and conduct of 1996 as "Visit Myanmar Year".(58)

Prisoners from around Myanmar are also routinely required to work in construction projects.(59) They are made to work on roadbuilding, as well as the breaking of rocks for roadbuilding. Generally prisoners are taken to labour camps near the projects on which they are to work. Conditions in the labour camps are harsh, and the work is difficult. Many prisoners die in the course of this work. There have been reports that political prisoners are among those taken to the labour camps.(60)

(b) Forced labour on development projects
is systematic and organized

Forced labour on development projects in Myanmar follows systematic and organized patterns, and the evidence discloses large increases in forced labour in recent times.(61) Although some people have been transported to different parts of the country to work on forced labour projects, "usually the construction work is organized on a village or township basis. For local projects each family (or street or block) is ordered by the district LORC [Law and Order Restoration Council] to provide a specific number of labourers to complete a particular task, such as breaking a quantity of rocks or digging a section of road".(62) As noted by one human rights group, "it is ... usually left to the headman to choose which families will work at which times, on a rotating basis. There is no option to choose not to go; the only alternatives to going are to pay heavy fines ('porter tax') or to flee the area".(63) Funds to pay labourers are rarely available, and almost never reach those who do the work.(64) In cases where villagers have neither fled nor complied with the orders, they have suffered reprisals at the hands of the local SLORC troops. Retribution has included the infliction of beatings and torture upon the village headman,(65) and threats to kill those who do not contribute labour.

(c) Harsh working conditions and human rights abuses
are common on development projects

Forced labour on construction projects is itself arduous and exhausting, consisting of manual labour to dig ditches, build embankments, and lay roads, dams and railways. The hours of work are long with little opportunity to rest, and little or no water or food are supplied. Reports suggest that people have been forced to stay overnight at the site of their work, commonly to sleep on the roads they are building, irrespective of the weather conditions.(66) Deprivation of medical care results in disease and other health problems. Many of the forced labour camps are in areas where malaria is rife.(67) In other cases, climatic change has a severe impact on the hill people transported from their home environments.(68)

As with those who are forced to work as porters for the Tatmadaw, gross human rights abuses in the course of forced labour on development projects are routine.(69) The Special Rapporteur on Myanmar has noted that the worst human rights abuses of which he was informed occurred in the course of forced labour on development projects, as well as forced portering.(70) There have been repeated reports that people forced to work on construction projects suffer beatings, torture, disappearance and summary execution.(71) Women and children suffer these abuses, as well as men,(72) and some women labourers are also raped at night by soldiers.(73)

(d) The practice of forced labour on public development
and infrastructure projects harms the social and
economic life of the people of Myanmar

The practice of forced labour is destructive to the social and economic life of the people affected by it. As noted by a leading investigative group, "forcible conscription of civilians into compulsory labour duties for the military authorities ... further disrupts family life and pushes many families deeper into poverty"(74) in a country which is already one of the world's poorest. In Arakan State, for example, many of the people are day labourers, for whom the impact of being forced to work for nothing for the SLORC is compounded by the loss of opportunity to take what little paying work is available.(75) Family life is further destroyed as children are compelled to help fill the family's quotas for forced labour projects while their fathers continue to try to find voluntary, paid work.(76) The children themselves are thus deprived of education and childhood life.

The forced labour services of certain family members disproportionately shifts the burdens of the family's income-generating activity, and negatively affects the rural economy and, as a result, nutrition and health. While men are away on forced labour projects, "the burden of agriculture falls on the women. With depleted numbers in the community it becomes more difficult to plant, tend and harvest crops. Crop failure, malnutrition and disease are a result".(77) The impact of forced labour practices on the health of women and children is significant.(78) Indeed, "the forcible conscription of women, including girls, pregnant women and the elderly, into compulsory labour duties on government construction projects or even as porters in the war zones ... has major health and humanitarian implications for the whole of Burmese society, since not only does forced labour in itself have an extremely detrimental impact on health, but it is in the course of forced labour duties that many of the worst human rights violations against women, including rape and threats to life, have been committed".(79) The widespread practice of rape destroys the personal, familial and village lives of the women who suffer such abuses.(80)

(e) The development and infrastructure projects for which
the Government uses forced labour do not benefit
the community supplying the forced labour

The benefit from the development projects to the community from which forced labour is exacted is illusory or non-existent.(81) In many cases, whole villages are forcibly relocated in order for projects to go ahead.(82) In most cases the roads and railways under construction are intended to benefit the SLORC rather than any community in Myanmar. Roads and railways are designed for transporting troops to areas where the SLORC seeks to exercise greater control, and to facilitate tourist development.(83) In any case it is doubtful whether the construction of parts of major roads can be seen as beneficial to small communities; poverty is such that local people cannot afford road or rail travel.(84)

A number of sources are available to estimate the economic or market value of forced labour. They include the Government's own economic figures, as published in its statistical Annual Review, as well as data from World Bank and International Monetary Fund reports. In addition, the Government of the United States has issued a detailed account of what it calls "the market value of uncompensated and largely involuntary labor employed ... in public works projects", principally construction of roads and bridges in local development projects. According to the Foreign economic trends report: Burma, issued by the US Department of State in June 1996 and based primarily on the Government's own Annual Review, during the financial year 1994-95 that market value was approximately 3.1 per cent of the gross domestic product, figured on the basis of the official exchange rate for the kyat, Burma's currency.(85) During that period, the share of "people's contributions" in the cost of state projects was 53.9 per cent of the total value of expenditure.(86) In addition, SLORC's economic data reveals that the money saved by its forced labour programmes is diverted to increase military and other expenditures that do not benefit the people or provide for their basic needs. In fact, available data for those years indicate that government expenditures in the military procurement rose in part as a result of the windfall in the government budget in forced labour savings in public works.(87)

3. The Government of Myanmar uses forced labour
on military construction projects

Forced labour exacted from the people of Myanmar is put to use in the construction of military facilities. Civilians reportedly have been forced to work on the construction of military and border police barracks.(88) Other forms of labour on behalf of the military have included building and maintaining military roads, and building and servicing military camps.(89)

B. Forced labour for private benefit

1. The Government of Myanmar uses forced labour to
promote private benefit in joint venture developments,
including the country's oil and natural gas reserves

The Government of Myanmar has sought to attract foreign investment to develop what are thought to be substantial natural gas and oil reserves in the country. Since 1992, reports from various sources consistently corroborate the Government's use of forced labour on a massive scale in parts of Myanmar where exploration of oil and gas resources, and associated works to build necessary infrastructure, are occurring.(90) The projects for development of oil and gas reserves include the Yadana gas pipeline project offshore from Mon State, and the Sagaing division test drilling project.

The Yadana gas pipeline represents the most advanced project for the development and exploitation of Myanmar's natural gas and oil reserves, and is operated as a joint venture between TOTAL, a French oil company, Unocal, a US oil company, and MOGE (Myanmar Oi1 and Gas Enterprises), a company wholly owned by the SLORC.(91) Widespread and persistent reports confirm that people living in the vicinity of the pipeline route are regularly forced to work construction of the pipeline route itself, and on related infrastructure.(92) Reliable reports of human rights abuses, including torture, rape, summary and arbitrary executions, and forced relocations as a result of forced labour have been documented and recently confirmed as to 11 villages in the region.(93) These reports are denied by both the Government of Myanmar,(94) and by the oil companies involved in the project.(95)

Construction of the 100-mile Ye-Tavoy railroad, thought to be associated with the development of the gas reserves and the installation of the pipeline, has resulted in relocation of ethnic Mon and Karen, fleeing forced labour duties.(96) To this extent at least, then, the railway appears to be connected with the construction of the pipeline, and its construction is of benefit to the private oil companies participating in the joint venture.

In addition, a Korean company, Yukong Oil Company, had a test well in Htaw Tha village in the Sagaing division. People who were forced to work on the construction of a road between Manywa and Khamti reported that a police post had been set up in the area to which men, women and children labouring in the area brought supplies night and day for police guards and for workers. (97)

2. Forced labour is used for the benefit
of private investors in development,
public works and tourism projects

As noted above, widespread use of forced labour on a significant scale supports the development of tourist infrastructure.(98) In addition, the Government recently has adopted a practice of inviting local investors to participate in the construction of highways and railroads with the incentive of return on their investments through the eventual establishment of toll gates to collect fees for the use of the roads.(99) The Government has announced that the privatization of infrastructure development is "part and parcel of plans to create more job opportunities for the people",(100) a strategy which appears to involve the implementation of development projects "by the Government, counting on the participation of the local people in the contribution of labour ...".(101) In Myanmar, most of the money made in the tourist industry is made in the airline and hotel industries, owned in part by foreign companies from Hong Kong, Malaysia, Singapore and Thailand.(102) These companies have reported benefits from the increased profits during 1996 Visit Myanmar Year, attributable in part to work of forced labourers on tourist attraction projects.(103)

3. The Government of Myanmar uses forced labour
for the private commercial interests
of military members

The commanding officers within the Tatmadaw are regularly reported to be involved in a variety of their own commercial ventures in the country, including shrimp cultivation, paddy and fishpond operations, tree-planting and timber cultivation. Following the pattern of forced labour that is evident in public projects, the military regularly forces the civilian population into service to suit their own commercial interests. For example, in Mergui-Tavoy district reports indicated that Karen people have been forced to work without pay on a large rubber plantation, and also in the construction of a dike for shrimp farming operations; it was reported that as many as 13,000 people were compelled to work on these projects.(104)

C. The law of forced labour in Myanmar

1. Myanmar law provides for forced or
compulsory labour to be exacted from
the people on pain of penalties

Two laws in effect in Myanmar, the Villages Act 1908 and the Towns Act 1907, authorize forced or compulsory labour to be exacted from the people on pain of penalties. The laws authorize portering, transport and other services to be exacted for government troops, police and officers "in the execution of their public duties", and provide for fines and, in the case of the Villages Act 1908, imprisonment of up to one month, for failure to comply. The laws also authorize a class-based discrimination in the selection of "the labouring class" for such work. Unlike the English version quoted below, the Burmese explanatory version of the laws reportedly allows for no "reasonable excuse" or "reasonable cause" to exempt one from penalty.(105)

The English version of the relevant sections of the Villages Act 1908 provides as follows:

8(1) Every headman shall be bound to perform the following public duties, namely:

...

(g) to collect and furnish, upon receipt of payment for the same at such rates as the Deputy Commissioner may fix, guides, messengers, porters, supplies of food, carriage and means of transport for any troops or police posted in or near or marching through the village tract or for any servant of the Government travelling on duty; provided that no headman shall requisition for personal service any resident of such village tract who is not of the labouring class and accustomed to do such work as may be required;

...

(n) generally to assist all officers of the Government in the execution of their public duties; and

(o) generally to adopt such measures and do such acts as the exigency of the village may require.

...

10. If a headman or a rural policeman neglects to perform any of the public duties imposed upon him by this Act or a rule thereunder, or abuses any of the powers conferred upon him by this Act or any such rule, he shall be liable, by order of the Deputy Commissioner, to pay a fine not exceeding 50 rupees.

11. Every person residing in a village tract shall be bound to perform any of the public duties, namely:

...

(d) on the requisition of the headman or of a rural policeman, to assist him in the execution of his duties prescribed in sections 7 and 8 of the Act and the rules made under the Act.

Explanation: A requisition under clause (d) may be either general or addressed to an individual.

12. If a person residing in a village tract refuse or neglects to perform any of the public duties imposed upon him by this Act or by any rule thereunder, he shall, in the absence of reasonable excuse, the burden of proving which shall lie upon him, be liable:

(i) by order of the headman, to fine not exceeding five rupees, or

(ii) by order of the village committee, on the case being referred to it by the headman, to fine not exceeding ten rupees, or to confinement for a term not exceeding 48 hours in such place as the Deputy Commissioner may appoint in this behalf, or to both, or

(iii) on conviction by a magistrate, to fine not exceeding 50 rupees, or to imprisonment for a term not exceeding one month, or to both.(106)

The English version of the relevant sections of the Towns Act 1907 provides as follows:

7(1) The headman of a ward shall be bound to perform the following public duties, namely:

...

(1) to collect and furnish, upon receipt of payment for the same in advance at such rates as the Deputy Commissioner, with the sanction of the Commissioner, may from time to time fix, guides, supplies of food, carriage, and means of transport for any troops or police posted in or near or marching through or near the town;

Provided that no headman shall be bound to collect supplies beyond the limits of the ward of which he is headman, or to furnish carriage or means of transport for more than 12 hours' journey from such town unless the Deputy Commissioner certifies in writing that it is necessary in the public interests that carriage or means of transport should be supplied for a longer period, in which case the Deputy Commissioner shall fix higher rates of payment than the rates of payment for journeys of 12 hours or less;

Provided also that no headman shall requisition for personal service any resident of such ward who is not of the labouring class and accustomed to do such work as may be required; and

(m) generally to assist all officers of the government and municipal officers in the execution of their public duties.

...

9. Persons residing in a ward shall be bound to perform the following public duties, namely:

...

(b) on a general or individual requisition of the headman to assist him in the execution of his public duties.

9A. If any person residing in a ward refuses or neglects to perform any of the public duties imposed upon him by this Act or any rule thereunder, he shall, in the absence of reasonable cause, the burden of proving which shall lie upon him, be liable, on conviction by a magistrate, to a fine which may extend to 50 rupees.

In 1995, the Government of Myanmar admitted that "the two laws were no longer in conformity with the prevailing conditions in the country, besides not being in line with the provisions of the ILO Convention of 1930 (No. 29)".(107) The statement appeared to be an acceptance of the ILO's conclusions and recommendations for repeal of the laws upon review of the situation for some 34 years.(108) Despite repeal of some 150 laws in the past several years,(109) the Government of Myanmar has not yet repealed the two laws authorizing forced labour.(110)

2. The Government of Myanmar has issued
directives that legitimize the practice of
forced labour on development projects

Two recent government directives acknowledge the extent of the practice of forced labour on development projects, and seek to maintain the practice under specific circumstances.(111) Directive No. 125, dated 2 June 1995, purports to be an instruction from the Chairman of the SLORC, the military junta in control of the country, to all State/Division Law and Order Restoration Councils. The directive thus was intended for national distribution. Under the directive as reported by the Special Rapporteur, the SLORC prohibits unpaid labour contributions in national development projects and requires that "in obtaining the necessary labour from the local people, they must be paid their due share". In addition, the directive instructs the authorities concerned to "avoid undesirable incidents", a reference that appears in context to relate to "causing misery and suffering to the people in rural areas ...".

The other directive, No. 82, is purportedly of more narrow application, dated 27 April 1995, and sent from the SLORC Chairman to the Yangon Division Law and Order Chairmen and the Ministry of Agriculture. The directive instructs the recipients "to stop the practice of obtaining labour from the local people without monetary compensation" as applied to the construction of dams in Yangon division.

Neither directive contains language abrogating any of the terms of the Villages Act 1908 and Towns Act 1907 authorizing forced labour, and indeed the directives serve to legitimize the practice of forced labour by authorizing it to proceed with compensation and without "undesirable incidents". Neither directive contains any penalties for breaches of the directives themselves. In addition, as noted by the Special Rapporteur several months after their publication, the directives were "still not public and therefore not accessible to those to whom they would apply and to those protecting the rights of persons accused of breaking the laws".(112)

3. The laws authorizing forced labour in Myanmar fall
outside the scope of a criminal law punishing the
"unlawful" exaction of forced or compulsory labour

A criminal law may be in effect in Myanmar making the "unlawful" exaction of forced or compulsory labour punishable as a criminal offence. Section 374 of the Penal Code provides:

"374. Whoever unlawfully compels any person to labour against the will of that person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both."(113)

The terms of the Villages Act 1908 and the Towns Act 1907 can be read as lawful authorization to compel labour and thus are outside the scope of the criminal statute.

 


IV. CONCLUSIONS OF LAW

A. The practice of forced labour in Myanmar
is a breach of its international obligations
under Convention No. 29

1. Myanmar's practice of forced labour breaches
its obligations under Convention No. 29

The facts demonstrate that "work and services" are being exacted from people in Myanmar "under the menace of penalty", as prohibited by Convention No. 29. Penalty should be taken to include both penalties as a matter of law, and those effective in fact. The term should include any real threat or imposition of actual personal, physical, or financial loss, harm or hardship, whether by administrative or judicial proceeding, of by any other exercise of ostensible governmental power. Penalty is not limited to penal sanctions: it includes any loss of rights or privileges.(114) This indicates that a broad and purposive interpretation is appropriate, so as best to achieve the Convention's object of the suppression of forced and compulsory labour in all its forms within the shortest possible period.(115)

The practices in Myanmar described above are all conducted under the "menace of penalty" within the meaning of the Convention. By the Government's own admission, portering services are exacted pursuant to the Villages Act 1908 and the Towns Act 1907, which provide criminal penalties for failure to supply labour in accordance with their terms.(116) In addition, work and services other than portering are exacted by force, threat of force, including work on development projects, tourist projects, sexual services and labour for private benefit. The evidence demonstrates that much of the labour is performed subject to detention, beating, torture and other physical harm. Sexual services exacted from Burmese women by way of rape are conducted by force or by threat of force.(117) Moreover, labour performed in circumstances where the only alternatives to its performance are payment of fees, or expenditure to hire a substitute labourer, is performed under the menace of a penalty.

The facts further demonstrate that, in the incidents at issue, the persons performing the work and services did not offer themselves voluntarily. As a matter of law, labour obtained through legal compulsion cannot be taken to have been offered voluntarily. Sexual services exacted from Burmese women by way of rape that result in actual physical loss, harm and hardship are, ex hypothesi, not offered voluntarily. Nor can labour by prisoners, or children (in particular the more exploitative form of labour by children)(118) be considered to be performed voluntarily.

Any payment received by the people who perform the work and services described is irrelevant to a determination of the question whether the work and services were offered voluntarily. Indeed, the Convention appears to contemplate that payment and compulsion can occur simultamously. In setting guarantees and terms for forced labour practices under the now-lapsed transitional regime,(119) the Convention prescribes rates and methods for strict cash remuneration under Article 14, except where the labour is being exacted as a tax under the now-lapsed terms of Article 10.(120)

Contrary to the assertions of the Government of Myanmar, labour is not contributed voluntarily by the people pursuant to Buddhist cultural tradition. The facts demonstrate that people are compelled to work, under the menace of penalties, and that they are commonly seized to perform work. The facts also demonstrate that Rohingya Muslims, Karen Christians and other predominantly non-Buddhist ethnic groups are called upon to perform forced labour.(121) The military junta's extension of the colonial practice has eroded the social and economic fabric of village life, thereby harming cultural tradition.

The Government of Myanmar recently stated to the Conference Committee that, having reached cease-fires with 15 of 16 insurgent groups, only members of the armed forces would be used henceforth on "major development projects".(122) However, that statement fails to demonstrate compliance with Convention No. 29. The limiting word "major" before "community development projects" implies that forced labour will still be used on other projects. Furthermore, the evidence demonstrates that, where military services are supplied, the people's forced labour is still used for construction of military barracks as well as for services such as portering, supply of food, and messengering.(123) In addition, the Tatmadaw, which is to retain its military duties along with the new development tasks,(124) does not have the human resources to provide labour on the scale that apparently is required by the SLORC for its development projects; the record demonstrates that the supply of forced labour used thus far exceeds 800,000 people.(125) Finally, the Government's position provides no lasting guarantee of compliance with Convention No. 29 and freedom from forced labour for the people of Myanmar. The laws and directives authorizing forced labour remain in effect, and sliders may be called back to combat or other duties at any time.

Whether or not the Villages Act 1908 or the Towns Act 1907 are expressly relied upon, the fact of their continued operation of itself makes it difficult to be confident that any contributions of labour are, in fact, voluntary.(126) Indeed, the, Article 24 Committee noted in this respect that "the blurring of the borderline between compulsory and voluntary labour [was] recurrent throughout the Government's statements to the Committee, is all the more likely to occur in actual recruitment by local or military officials".(127) The texts of the secret directives issued during 1995(128) admit and continue to authorize forced labour in Myanmar. The Government of Myanmar's own published budget and economic figures reflect the significant and increasing role of "people's contributions" in its plans for development.(129) In the absence of any convincing evidence that the "people's contributions" are in fact labour which is voluntarily donated, or properly remunerated, these figures, should be taken as an admission that forced labour occurs in Myanmar on a massive scale.

2. Myanmar's failure to completely suppress forced labour
for private benefit violates Convention No. 29

The facts demonstrate that Myanmar has blatantly violated its immediate obligation to completely suppress forced labour for private benefit. It is exacting forced labour from the people in its joint venture development projects in the oil and gas sector,(130) infrastructure development (railroads and highways),(131) and the tourism industry.(132) Further evidence reveals that members of the military practice forced labour for their own private commercial benefit, with impunity.(133) Where the practice of forced or compulsory labour for the benefit of private associations, companies and individuals exists, it should be "completely" suppressed from the date of Convention No. 29 coming into force,(134) and it should not be permitted thereafter.(135)

3. Myanmar's failure in practice to pursue and to punish
those who exact forced labour breaches its obligations
under Convention No. 29

There is no credible evidence of any active steps by the Government of Myanmar to bring about an end to the practice of forced labour. Prosecution under the Penal Code by its terms would fail to cover forced labour conducted pursuant to the Villages Act 1908 and the Towns Act 1907. The issuance of the secret directives, rather than purporting to end the practice, further legitimizes the practice by addressing circumstances under which forced labour can be imposed.(136) No report has become available of any attempt to pursue prosecution of any person or organization responsible for the exaction of forced labour.

B. Myanmar's laws do not comply with Convention No. 29

1. The Government of Myanmar has breached its
duty under Convention No. 29 because it has
failed to repeal or amend its laws that permit
the exaction of forced labour

The Government of Myanmar has admitted that the Villages Act 1908 and the Towns Act 1907(137) are "not ... in line with the provisions of the ILO Convention,(138) and yet has failed to repeal or amend those laws. There are no indications that this situation has changed since a Government's statement to that effect was issued in a Memorandum of Observations addressed to the United Nations in March 1996.(139)

Since 1967 the Government of Myanmar has indicated in its reports under article 22 of the ILO Constitution that those laws have fallen into disuse and are to be repealed. More lately, however, the Government has indicated that it relies on the laws as authorization at least for the practice of portering.(140) In so doing, it purports to rely on legislation which the ILO has repeatedly indicated does not comply with Myanmar's obligations under Convention No. 29,(141) and should be brought into line with Convention No. 29, as well as followed by action "to ensure that the formal repeal of the power to impose compulsory labour was followed up in actual practice and that those resorting to coercion in the recruitment of labour were punished.(142)

2. The Government of Myanmar has failed to meet
its duty under Convention No. 29 because it has
not fully complied with Article 25

The Government of Myanmar has failed to adequately criminalize and enforce penalties against forced labour practices, as required by the Convention. Article 25 requires that a State party make the exaction of forced or compulsory labour punishable as a criminal offence, that "really adequate penalties" be available, and that the State party make efforts to ensure that the laws are enforced. The Committee of Experts has made clear that compliance with Article 25 of Convention No. 29 requires that laws must be publicized,(143) as part of a systematic approach,(144) which has clear goals, a well-defined strategy, and takes place within a comprehensive legal framework.(145) Enforcement of the laws contemplated by Article 25 must cover all sectors of economic production and industrial activity.(146)

The secret directives issued by SLORC during 1995(147) concerning the use of compulsory labour do not amount to compliance with its Article 25 obligation. On their face the secret directives do not criminalize the exaction of portering or any other form of forced or compulsory labour, nor do they purport to repeal either the Villages Act 1908 or the Towns Act 1907. The secret directives merely seek to legitimize the practice of forced or compulsory labour by directing the terms under which it can be imposed. None of those terms satisfy an exception found in the Convention, Article 2.(148) Directive No. 82(149) only covers irrigation and apparently only applies in the Yangon division. Finally, the secret directives fail to specify any penalty for non-compliance with their terms and, in any event, purport to be secret; so that they are unlikely to be known to the people they are apparently intended to protect.

Section 347 of the Penal Code, which appears to be repealed, does not amount to compliance with Article 25 of Convention No. 29 because it expressly limits the offence that it creates to the unlawful exaction of forced labour. Accordingly, action taken under the Villages Act 1908 and the Towns Act 1907 and, arguably, under the recent secret directives or other such orders, would fall outside the scope of the section.

C. No permissible exception under Article 2 applies

None of the forced labour practices in Myanmar qualifies as an exception from the Convention's general prohibition on the use of forced or compulsory labour under Article 2. That Article sets forth five narrow exceptions, discussed in turn below: (a) compulsory military service; (b) normal civic obligations; (c) labour as punishment for duly convicted prisoners; (d) circumstances of emergency threatening the population; and (e) minor communal service. In addition, the Government has sought to exempt its practices because its forced labourers are, or are entitled to be, paid. However, under Article 2(2) whether a forced labourer is paid makes no difference to the determination of whether the conduct qualifies under one of the exceptions.(150)

1. The forced labour practices do not constitute work
or service "exacted in virtue of compulsory
military service laws for work of a purely
military character" under Article 2(2)(a)

The exception found in Article 2(2)(a) for "work of a purely military character" is not met by Myanmar's practice of forced labour. The Government of Myanmar has consistently asserted that recruitment into the military is on a purely voluntary basis.(151) Accordingly, it seems unlikely that there are "compulsory military service laws" within the meaning of this article of Convention No. 29, and thus "any work or service ... of a purely military character" by non-volunteers falls outside the exception. Civilians forced to work as porters who perform military tasks pursuant to the Villages Act 1908 and the Towns Act 1907, or under threat or use of force are ipso facto non-volunteers.(152)

2. Forced and compulsory labour in Myanmar is not part
of the normal civic obligations of the citizenry, within
the meaning of Article2(2)(b) of the Convention

Forced labour in Myanmar is not contemplated by the exception found in Article 2(2)(b) for "normal civic obligations". That exception contemplates such matters as compulsory jury service, the duty to assist a person in danger, and the duty to assist in the enforcement of law and order.(153) The nature and scope of forced and compulsory labour in Myanmar are in no way analogous to these exceptions, due to the personal effort, danger, harm and inconvenience the practice of forced labour in Myanmar requires.(154)

3. The labour exacted from prisoners does not
meet the strict requirements of Article 2(2)(c)

The forced labour of prisoners in Myanmar does not qualify under the narrow requirements of Article 2(2)(c). That Article requires that work exacted from prisoners as part of their punishment cannot be made available to private individuals except at the prisoner's free choice.(155) The Article further requires that the work be exacted "as a consequence of a conviction in a court of law" and "aims at ensuring that penal labour will not be imposed unless the guarantees laid down in the general principles of law recognized by the community of nations are observed, such as the presumption of innocence, equality before the law, regularity and impartiality of proceedings, independence and impartiality of courts, guarantees necessary for defence, clear definition of the offence and non-retroactivity of penal law".(156)

Documented reports demonstrate that the process of criminal convictions in Myanmar falls far short of process standards, both in military tribunals and in "civilian" courts established under SLORC administration.(157) In many cases, convictions am entered after summary trials or trials that fail to meet internationally recognized minimum standards of due process, including failure to observe the presumption of innocence, the defendant's right to counsel and other guarantees necessary for an adequate defence.(158) In some cases, conviction is entered without trial.(159) Persons convicted either by military tribunals, or by civilian courts cannot be considered to have been "convicted in a court of law" within the meaning of Article 2(2)(c), and any exaction of forced labour from them does not meet the requirements of that exception.

Furthermore, there is no evidence that any prisoner working in a labour camp in Myanmar is offered the choice whether to work, irrespective of the entity for which the work is being performed. Moreover, work on infrastructure projects related to private investment, such as the Yadana pipeline, does not qualify as an exception under these circumstances.

4. No emergency within the meaning of Article 2(2)(d)
exists to permit the forced and compulsory labour
that is currently being performed in Myanmar

The circumstances under which forced labour is practised in Myanmar fail to meet the type of exception contemplated by Article 2(2)(d). In that Article the concept of emergency requires "a sudden, unforeseen happening calling for instant countermeasures",(160) "that endangers the existence or the well-being of the whole or part of the population". No emergency exists or has existed in Myanmar that qualifies under Article 2(2)(d). The nature of the armed insurgencies were not "sudden" or "unforeseen" but rather the result of a protracted civil war of more than 40 years. The insurgencies of themselves did not result from endangerment of the population itself, but rather threatened the political control of the junta in the areas of conflict.(161)

Even if it were considered that the nature of the armed conflicts in outlying areas came within the meaning of Article 2(2)(d), the forced and compulsory labour that is being and has been performed in Myanmar is not exacted in accordance with the conditions required by that Article. The Article requires that the labour be "limited to what is strictly required" by the circumstances and to the duration of the emergency.(162) To the contrary, the widespread and systematic forced or compulsory labour in Myanmar is out of proportion to the insurgencies, and has lasted for decades. Moreover, forced labour in Myanmar goes far beyond what is strictly required by the exigencies of the situation. For example, infrastructure and tourist development bear no relation to any state of emergency caused by the armed insurgencies, and sexual services exacted by way of rape bear no relation to justified response to war.

5. Forced or compulsory labour in Myanmar goes far
beyond the concept of "minor communal service"
in Article 2(2)(e)

Forced and compulsory labour in Myanmar does not meet the requirements of Article 2(2)(e). As the Article provides, minor communal services must be "truly minor", such as maintenance work, or the construction of schools; performed for the benefit of the direct community of people who perform the work, not some wider group; and performed following consultation of the community or its representatives concerning the work to be performed.(163) In Myanmar, in contrast, the work is commonly extensive and significant in scope, not minor. It involves construction of roads, embankments and dams, and continues for days and sometimes weeks at a time. Forced labour is commonly performed for groups other than the citizenry, such as the military, or private interests. Where the labour is performed for general public benefit, as in infrastructure development, the benefits to the local community are diffuse and speculative at best, because the effect inures to communities far beyond those by whom the work is performed.(164) Indeed, the Committee of Experts refused under certain circumstances to accept that construction of projects of such scale and significance as railways meets the requirements of this Article.(165) Members of the community and their representatives are not consulted concerning the work to be performed. On the contrary, the evidence shows that where community representatives are involved, village headmen are ordered to present community members for work, and that commonly people are literally forced to work, being captured and seized from their community and made to labour.

D. A transitional period does not apply in this case and,
even if a transitional period applied, the Government
of Myanmar has failed to demonstrate compliance
with the guarantees that govern such a period

1. The ILO noted that no transitional period applies
to exempt the Government of Myanmar from its
obligation under Convention No. 29 to suppress
forced labour in all its forms

The Article 24 Committee determined that there was no question of a transitional period in this case.(166) While the Commission of Inquiry will be at liberty to make its own findings of fact and law de novo, the conclusions of the Article 24 Committee should be given considerable weight, and followed.(167)

2. A transitional period does not apply in the case
of Myanmar as a matter of fact or law

The 40 years since Myanmar ratified Convention No. 29 in 1955(168) constitutes more than ample time to make any required alterations to its laws and practices during any necessary period of transition. The brevity of the transitional period contemplated by the Convention is indicated by the requirements that certain forms of forced labour be immediately suppressed, the strict conditions and limitations which apply to any forced labour exacted during the transitional period; and the provision in Convention No. 29 itself(169) for two reviews of its operation, after five and ten years from its coming into force, with a view to the suppression of forced labour in all its forms, and without a further transitional period.

The concept of the transitional period, and the guarantees provided for concerning the conditions for the continued use of forced and compulsory labour during that period(170) "were aimed essentially at certain colonial practices".(171) By 1968 "relatively few of the countries bound by the Convention [were] still in a position to avail themselves of the transitional arrangements ..."(172) and by 1979 the transitional provisions were "hardly ever invoked ... as a justification for retaining forced or compulsory labour."(173) The Villages Act 1908 and the Towns Act 1907 are colonial laws never abolished after independence in Burma. The jurisprudence and General Surveys of the Committee of Experts support the conclusion that the laws do not conform to the understanding and interpretation of Convention No. 29 by the majority of States parties to it.

3. Myanmar is bound by its declaration
that no transitional period applies

The Government of Myanmar took the position before the Article 24 Committee that the transitional period did not apply.(174) That position can be considered as a declaration that gives rise to an obligation binding on it. In the Nuclear tests cases, the International Court of Justice held that a declaration concerning a legal or actual situation, made by way of a unilateral act of a State, may give rise to obligations which are binding on that State, and owed by it to the international community erga omnes, without the need for any acceptance of the act by any other State.(175) Whether or not an act has this effect depends upon the circumstances in which it occurs, and the intention of the maker of the statement. In the case before the International Court of Justice, the unilateral declaration by France that it would not conduct any more atmospheric tests, made in the vicinity of the International Court of Justice, and in litigious circomstances, gave rise to an obligation binding it to abide by that declaration: "It was bound to assume that other States might take note of these statements and rely on their being effective."(176) In assessing the intention of the State making the declaration, a restrictive interpretation is called for where the content of the declaration would limit the State's future freedom of action.(177) Further, it is more likely that a State intended to be bound by the declaration in circumstances where it could not bind itself by the ordinary means of formal agreement.(178)

In this case it can be argued that the Government of Myanmar is bound by its unilateral acts of confirmation of compliance with Convention No. 29, of which other States took note. The Government did not invoke the transitional period as justification for the practice of forced portering, the subject of the representation by the ICFTU under article 24 of the ILO Constitution. Accordingly the Article 24 Committee(179) determined that there is no longer any question of a transitional period for Myanmar. This is in accordance with the position taken by the Government of Myanmar in its reports to the Committee of Experts under article 22 of the ILO Constitution concerning its compliance with its obligations under Convention No. 29 since 1967.(180) These actions by the Government of Myanmar were unilateral acts, having the effect of limiting its future freedom under Convention No. 29, and concerned a matter not amenable to formal agreement with any other State or group of States. Accordingly Myannar, having made a declaration to the international community, through the avenue of the Article 24 Committee, may now be held to the content of that declaration by the international community through the ILO.

4. In any event, none of the conditions and
guarantees required during the transitional
period is satisfied in Myanmar

The facts in this case demonstrate that, even if there were a transitional period in effect, the forced labour practices of Myanmar do not meet the conditions and guarantees required by the Convention. Article 1(2) requires that, during the transitional period, recourse may be had to compulsory labour for public purposes only, as an exceptional measure, and subject to the conditions and guarantees subsequently provided.(181) The practice of forced labour in Myanmar breaches key components of Article 1(2): evidence demonstrates that forced labour is used for the benefit of private associations, individuals and companies;(182) forced labour is used widely and systematically, and is in fact a budgeted part of the Government's development programme; the use of forced labour is not limited in any way to use as an exceptional measure.(183) Furthermore, none of the conditions and guarantees subsequently set forth is met.

Articles 8, 23 and 24.(184) As a military administration, SLORC and its local counterpart authorities do not meet the required description of a highest "civil" authority. To the extent that any regulations have been promulgated concerning the use of forced labour, those available publicly, such as the Villages Act, the Towns Act and uncovered "secret" directives, fail to provide for complaints to be submitted by persons from whom forced labour is exacted and for complaints to be considered.(185) Furthermore, there is no evidence of any attempt to enforce standards regulating the conditions under which forced labour is exacted.

Article 9.(186) No available evidence suggests that any authority, civil or otherwise, has made or is directed to make the determinations contemplated by the preambular parts of the Article prior to imposition of forced labour. In fact, the evidence demonstrates that forced labour is imposed under opposite circumstances. The work performed is not for the "important direct interest for the community called upon to do [the] work". Rather the forced labour exacted from people is for broad public benefit (roads, railways); for purely personal gratification (sexual services); for private company interests (gas exploration and exploitation ventures, tourist projects); and for the military for its own counter-insurgency or private commercial purposes.(187) None of the forms of labour exacted from the people of Myanmar is of imminent necessity.(188) There is no evidence of the SLORC or the Tatmadaw, as the case may be, ever having sought voluntary labour for any of the forms of forced labour, and there is little or no evidence of payment. The work and services exacted lay an unjustly heavy burden on the people of Myanmar from whom they are exacted. Fees are exacted from the poor to avoid forced labour; farmers and fishermen are forced to leave their occupations for long periods of time, disrupting planting and harvesting cycles; and family life is disrupted while members go away to perform work. Children are deprived of their education and childhood. In cases of rape, the physical and psychological damage, as well as social harm, are excruciating.(189)

Article 10.(190) Because the alternative to providing forced labour is payment of fees, it can be argued that people's labour is being exacted from them as a tax, in breach of Article 10(2). Because the determinations required by Articles 10(2)(a)-(c) are identical to Articles 9(a)-(c), the arguments made concerning those Articles are incorporated here. Many of the workers are forced to travel long distances to labour camps, to go portering. No respect for the exigencies of religion, social life or agriculture is observed.

Article 11.(191) The evidence demonstrates that Article 11(1) is breached regularly.(192) Many children, women and elderly work on forced labour projects and as porters. The evidence indicates that there is no prior physical assessment; no exemptions; and no consideration to the maintenance of the number of able-bodied adult males in any community, or to conjugal or family ties.

Article 12.(193) The evidence suggests that, rather than any attempt to regulate the length of time that persons are required to perform forced labour, the opposite occurs.(194) According to reliable reports, people in some areas are required to perform forced labour two weeks in every month. Many people are repeatedly required to serve as forced labourers, even where they have paid porter fees and met other demands. There is certainly no certification of service given out, or any attempt made to see that the burden of forced labour is shared around.

Articles 13 and 14.(195) The evidence demonstrates that Articles 13 and 14 are breached regularly in the practice of forced labour in Myanmar. The hours of work required of those performing forced labour are excessive, there is little or no payment, and there are no or insufficient rest periods and breaks.

Article 15.(196) While the Government of Myanmar has stated from time to time that the workers' compensation laws are applicable to "people's contribution" labour,(197) reliable and independently corroborated accounts, together with forensic and other physical evidence, attests that people are left to die from injuries suffered at work, unattended when disease occurs, and routinely subject to beatings, summary execution and rape.(198)

Article 16.(199) Contrary to Article 16, little or no respect is paid to using forced labour in the same location as that from which the people come, let alone attention to gradual habituation to new areas.

Article 17.(200) As discussed supra, there is no evidence of prior medical assessment or provision of appropriate medical care during work assignments; in most cases workers travel at their own expense and are left to suffer the consequences of any injuries they suffer wherever they are working; no efforts are made to ensure the subsistence of other members of workers' families.

Article 18.(201) The practice of forced portering in Myanmar is one of the most notorious breaches of its obligations under Convention No. 29. Portering is not conducted in accordance with any regard for the health and well-being of the people who perform the work, or of the communities from which the porters are taken, nor are any of the safeguards required by Article 18 routinely observed.(202)


V. CONCLUSIONS

Based on the above statement of facts and discussion of law, the complainants consider that:

1. Ample evidence demonstrates that forced labour in Myanmar is a widespread practice, provided for by law, and carried on without any prospect of prevention or punishment of those who exact forced labour from the citizens of Myanmar. The Government of Myanmar is therefore in flagrant breach of the Convention on Forced Labour, 1930 (ILO Convention No. 29).

2. Previous, repeated findings of the different organs of the ILO supervisory mechanisms have not brought progress in observance of the Convention. The question of the Government of Myanmar's non-compliance with its obligations under Convention No. 29 has been exhaustively considered by the Committee of Experts, the Conference Committee, and the Committee established to examine the Representation under article 24 of the ILO Constitution. Despite the views expressed by those bodies, the Government of Myanmar continues to blur the distinction between forced and voluntary labour, and persistently fails to eliminate the serious discrepancies identified in its law and practice.

3. In view of the above, complainants consider that the establishment of a Commission of Inquiry is appropriate and merited.

4. The complainants consider that the security of witnesses testifying before the Commission of Inquiry is of paramount importance. It should be ensured that any witnesses, whether testifying on their own initiative or upon request of any party, are protected from and held safe against any harm, reprisal or discrimination on the basis of their statements to the Commission of Inquiry. The same safeguards should be required for witnesses' families and next of kin.

5. The complainants would hope that, in any hearing or on-site visits, the Commission of Inquiry would be granted unhindered and private access to witnesses, would allow for anonymity of witnesses where necessary, and would be in a position to guarantee privacy and confidentiality of all hearings of and communications with witnesses. For any activities of the Commission of Inquiry within Myanmar itself, safeguards should include obtaining and monitoring commitments by the Government of Myanmar to ensure that credible assurances are given by high and local commander levels that no retaliatory measures will be taken against witnesses.

6. The complainants request that the Commission of Inquiry give due attention to the need for the Government to take immediate remedial measures and hence:

 


1.  International Labour Conference, 82nd Session, Report III (Part 5), List of ratifications by Convention and by country (Geneva, 1995), p. 46.

2.  Myanmar's compliance with its obligations under the ILO Convention concerning Freedom of Association and the Protection of the Right to Organise, 1948 (No. 87) has also been the subject of comment by the Committee of Experts and the Conference Committee. See, e.g., International Labour Conference, 83rd Session, Provisional Record, Report of the Committee on the Application of Standards (Geneva, 1996), paras. 166, 169.

3.  International Labour Conference, 48th Session, Report III (Part 1), Summary of reports on ratified Conventions (Geneva, 1964), p. 71.

4.  International Labour Conference, 52nd Session, Report III (Part 1), Summary of reports on ratified Conventions (Geneva, 1968), p. 57.

5.  International Labour Conference, 78th Session, Report III (Part 4A), Report of the Committee of Experts (Geneva, 1991), p. 99 (the Committee of Experts indicated its hope that the Government of Myanmar would respond in detail to the matters raised); International Labour Conference, 79th Session. Report III (Part 4A), Report of the Committee or Experts (Geneva, 1992), p. 127 (the Committee of Experts reiterated its comments of 1991, in view of the fact that no report had been received from the Government).

6.  For a discussion of the article 24 proceedings, see notes 16, 26 infra and accompanying text.

7.  Report of the Special Rapporteur on the situation of human rights in Myanmar, 1993, UN doc. E/CN.4/1993/37 (17 Feb. 1993) ("Report of the Special Rapporteur, 1993"); International Labour Conference, 80th Session, Report III (Part 4A), Report of the Committee of Experts (Geneva, 1993) ("RCE, 1993"), pp. 114, 115.

8.  This Article exempts from the general prohibition on forced labour work which is performed as part of "minor communal service". See notes 163-165 infra and accompanying text.

9.  International Labour Conference, 82nd Session, Report III (Part 4A), Report of the Committee of Experts (Geneva, 1995) ("RCE, 1995"), pp. 107-110.

10.  The Government's report merely referred to Article 2(2)(b) (exemption for forced labour as part of one's normal civic obligations -- see notes 153, 154 infra and accompanying text) and 2(2)(d) (exemption for forced labour exacted in time of emergency -- see notes 160-162 infra and accompanying text) and asserted that the term "forced labour" was not applicable to work performed pursuant to either the Villages Act 1908 or the Towns Act 1907, which were both outdated and subject to review in any event.

11.  International Labour Conference, 83rd Session, Report III (Part 4A), Report of the Committee of Experts (Geneva, 1996) ("RCE, 1996"), p. 89. See generally idem, pp. 87-89.

12.  International Labour Conference, 79th Session, Provisional Record, Report of the Committee on the Application of Standards (Geneva, 1992), pp. 27/37-27/38.

13.  International Labour Conference, 82nd Session, Provisional Record, Report of the Committee on the Application of Standards (Geneva, 1995), para. 139, ("RCE, 1996"), note 11 supra at 88.

14.  International Labour Conference, 83rd Session, Provisional Record, Report of the Committee on the Application of Standards (Geneva, 1996), para. 164.

15.  idem, para. 169.

16.  Representation under article 24 of the ILO Constitution against the Government of Myanmar (formerly Burma), for its violations of the Convention concerning Forced Labour, 1930 (Convention No. 29 of the International Labour Organization), ratified by Burma in 1955, submitted by the International Confederation of Free Trade Unions, on 25 January 1993 to the Director-General of the International Labour Office, on file with the ICFTU ("Article 24 Representation").

17.  See generally: ILO, Governing Body, Report of the Director-General, Second Supplementary Report, Report of the Committee set up to consider the representation made by the International Confederation of Free Trade Unions under article 24 of the ILO Constitution alleging non-observance by Myanmar of the Forced Labour Convention, 1930 (No. 29) (Geneva, Nov. 1994), ILO doc. GB.261/13/7 ("Article 24 Report").

18.  ILO, Governing Body, minutes of the 261st Session, ILO doc. GB.261/PV(Rev.) (Geneva, Nov. 1994), para. 61; RCE, 1996, note 11 supra at 88.

19.  Article 24 Representation, note 16 supra, note at 6.

20.  Article 24 Report, note 17 supra at paras. 12, 14-19.

21.  idem, para. 42 (communications in May, and in Oct. 1993).

22.  idem, paras. 20, 21, 25-40, and 48 respectively.

23.  idem, para. 48.

24.  idem, para. 49.

25.  idem, para. 50. Being satisfied, on this basis, that there was no question of a transitional period in the case of Myanmar, the Article 24 Committee did not examine the question whether forced portering was conducted in accordance with the guarantees provided in Articles 8-16, 18, 23 and 24 of Convention No. 29. idem, para. 51.

26.  idem, para. 52.

27.  Anti-Slavery International: Ethnic groups in Burma (London, 1994) ("Ethnic groups"), p. 91.

28.  Australian Council for Overseas Aid: Slave labour in Burma: An examination of the SLORC's forced labour policies (May 1996) ("ACFOA"), pp. 28-29; Ethnic groups, note 27 supra at 91.

29.  See, e.g., comments of the Government of Myanmar to the Article 24 Committee, notes 21, 22 supra and accompanying text at paras. 20-41.

30.  Ethnic groups, note 27 supra at 89.

31.  idem.

32.  For a general account of the practice of forced portering, see, e.g., Amnesty International: Myanmar: The climate of fear continues -- Members of ethnic minorities and political prisoners still targeted, AI: ASA 16/06/93 (Oct., 1993) ("Climate of fear"), pp. 13-21; Human Rights Watch/Asia: Abuses linked to the fall of Manerplaw, Vol. 7, No. 5 (Mar. 1995) ("Manerplaw"), p. 12. "Detailed reports, photographs, video recordings and a variety of physical evidence seen by the Special Rapporteur indicate that the practices of forced labour [and] forced portering ... are still widespread in Myanmar ...". Report of the Special Rapporteur on the situation of human rights in Myanmar, 1996, UN doc. E/CN.4/1996/65 (5 Feb. 1996) ("Report of the Special Rapporteur, 1996"), para. 173.

33.  For a discussion of the law, see notes 105-110 infra and accompanying text.

34.  Report of the Special Rapporteur, 1996, note 32 supra at para. 173.

35.  Amnesty International: Myanmar: No place to hide; Killings. abductions against ethnic Karen villagers and refugees, AI: ASA 16/13/95 (June 1995) ("No place to hide"), p. 25.

36.  See notes 21, 22 supra and accompanying text (comments of the Government of Myanmar to the Article 24 Committee).

37.  Ethnic groups, note 27 supra at III (mothers and pregnant women have been forced to work as porters); and Images Asia: No childhood at all: A report on child soldiers in Burma (May 1996), p. 6 (children have worked as porters).

38.  Amnesty International: Portering and forced labour: Amnesty International's concerns, AI: ASA 16/42/96 (Sep. 1996), pp. 2, 3; Amnesty International: Conditions in prisons and labour camps, AI: ASA 16/22/95 (Sep. 1995) ("Conditions in prisons"), pp. 1, 6.

39.  Conditions in prisons, note 38 supra at 1, 6.

40.  See, e.g., Amnesty International: Myanmar: Human rights after seven years of military rule, AI: ASA 16/23/95 (Oct. 1995) ("Seven years"), pp. 24-25; No place to hide, note 35 supra p. 27; Amnesty International: Human rights still denied, AI: ASA 16/18/94 (Nov. 1994) ("Denied"), pp. 14-21.

41.  See notes 50-53 infra and accompanying text..

42.  See, e.g., Asia Watch: Burma: Rape, forced labour and religious persecution in North Arakan State (May 1992) ("Arakan State"), p. 13.

43.  Report of the Special Rapporteur on the situation of human rights in Myanmar, 1995, UN doc. E/CN.4/1995/65 (12 Jan. 1995) ("Report of the Special Rapporteur, 1995"); Report of the Special Rapporteur on the situation of human rights in Myanmar, 1994, UN doc. E/CN.4/1994/57 (16 Feb. 1994) ("Report of the Special Rapporteur, 1994"), para. 49; see also the Report of the Special Rapporteur, 1996, note 32 supra at paras. 114, 115; Report of the Special Rapporteur, 1993, note 7 supra at paras. 79-84, 101-104, 135-138, 222, 228, 229, 231-233.

44.  Report of the Special Rapporteur on torture and other forms of cruel, inhuman or degrading treatment of punishment, 1994, UN doc. E/CN.4/1994/31 (6 Jan. 1994), para. 401.

45.  See, e.g., Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, 1994, UN doc. E/CN.4/1994/7 (7 Dec. 1993), para. 448.

46.  See, e.g., Climate of fear, note 32 supra at 21.

47.  Report of the Special Rapporteur on torture, note 41 supra.

48.  Human Rights Watch/Asia: Entrenchment or reform? Human rights developments and the need for continued pressure, Vol. 7. No. 10 (July 1995) ("Entrenchment"), p. 21. The following account by a former porter of the death of another porter, a neighbour from his village, is illustrative of the treatment meted out to porters by SLORC troops: "I heard Tun Shwe say to the soldier behind him, a private from Battalion 531, 'Sir, don't kill me, I will try to do my best to reach your destination. Now I cannot carry, cannot walk, but I will try. Don't punish me, don't kill me.' After Tun Shwe exclaimed 'I cannot carry, cannot walk' the soldier shot him dead, one bullet from a G-4 at a distance of about four metres, in his back so his insides came out. After the shooting nothing happened, no-one could say anything. The soldiers just said to the other porters 'complete your duty, go on, go on' as if he was driving cows." ("No place to hide"), note 35 supra at 29.

49.  Climate of fear, note 32 supra at 20-21 (16 and 17-year-old girls of ethnic groups taken as porters and raped.) One human rights group which interviewed a number of refugees in a camp in Thailand reported that women who had worked as porters commonly alleged that they had been raped: "Four victims, aged 17 to 42, said they had been seized in or near their homes in Kammamaung township. They said that troops had raped them during a 22-day tour of compulsory labour duties carrying artillery shells to the front for the Tatmadaw assault on Manerplaw." ("Ethnic groups"), note 27 supra at 113.

50.  Ethnic groups, note 27 supra at 89.

51.  Article 19: Burma: Beyond the law, (Aug. 1996) ("Beyond the law"), p. 50. For example, as part of SLORC's offensive against the Karen National Union and the Mong Tai Army between November 1994 and June 1995, thousands of porters were reportedly taken to the frontline, and hundreds died ("Entrenchment"), note 48 supra at 21.

52.  For example, an elderly Karen headman from Thaton district lost a leg after SLORC troops tied him to a rope and forced him to try and find a path through a minefield ("Ethnic groups"), note 27 supra at 29-30.

53.  In a notorious case in 1991, two teenage girls from Papun High School, in the Karen State, Naw Aye Hia and Ne Law Win, were reportedly killed when they stepped on mines after being press-ganged as porters ("Ethnic groups"), note 27 supra at 117.

54.  Report of the Special Rapporteur, 1996, note 32 supra at paras. 141-144; "Detailed reports, photographs, video recordings and a variety of physical evidence seen by the Special Rapporteur indicate that the practices of forced labour ... seem to be occurring in the context of development programmes ... Many of the victims of such acts belong to ethnic national populations. In particular, they are peasants, women, daily wage-earners and other peaceful civilians ...". idem, para. 173.

55.  RCE, 1995, note 9 supra at para. 2, p. 109 (the Government of Myanmar reporting "799,447 working people" as contributing "voluntary labour" on the Aungbon-Loikow railway); New light of Myanmar, 15 Dec. 1993, as cited in Entrenchment, note 48 supra, p. 15 (reporting 921,753 people contributing labour to build the Pokokku-Manywa railway); Beyond the law, note 51 supra at 49 (hundreds of thousands affected); Entrenchment, note 48 supra at 14 (estimating that since 1992 at least 2 million people have been forced to work without pay on construction of roads, railways and bridges across the country); Ethnic groups, note 27 supra at 84 (citing the Working People's Daily of 8 May 1992 reporting that over 300,000 people had contributed "voluntary labour" on the Aungbon-Loikow railway).

56.  For further discussion of forced labour and tourism, see notes 102, 103 infra and accompanying text.

57.  In 1995, the Government of Myanmar admitted to "contribution of labour" by the people on seven new railroad projects. Letter dated 18 March 1996 from the Permanent Representative of the Union of Myanmar to the United Nations Office at Geneva, Memorandum of Observations and comments concerning doc. E/CN.4/1996/65 of 5 Feb. 1996 pertaining to the Union of Myanmar, UN doc. E/CN.4/1996/139 (21 Mar. 1996) ("Memorandum of Observations"), p. 21; Ethnic groups, note 27 supra at 84. Examples of development projects involving forced labour include a railway from Ye to Tavoy, in Tenasserim division, widely reported to require tens of thousands of civilians in forced labour; Seven years, note 40 supra at 25-26. Article 19: Paradise lost? The suppression of environmental rights and freedom of expression in Burma (London, Sep. 1994) ("Paradise lost"), p. 6; and see discussion of gas and oil exploration notes 90-97 infra and accompanying text; road construction in Arakan State, a particularly undeveloped area that has seen the flight and return of 250,000 Rohingya Muslims in recent years; Climate of fear, note 32 supra; the local Rohingya population are regularly and reportedly disproportionately pressed into service (Beyond the law, note 51 supra at 49) as development leads to the need for greater control by SLORC; and a road from Putao to Sumprabum in Kachin State, on which 3,000 people were made to work in late 1994, Entrenchment, note 48 supra at 15. For maps depicting different construction projects in Myanmar which are being carried on using forced labour, see ACFOA, note 28 supra, Appendices A and B.

58.  See, e.g., "Burma using forced labour on tourist projects", New York Times, 17 July 1994. Examples of these projects include dredging the moat of the Golden Palace at Mandalay; persistent reports suggest that thousands of civilians have been ordered by SLORC to clear the moat by hand: e.g., The Bangkok Post, 22 Jan. 1995); airport construction, which is frequently observed to be performed by forced labour; as many as 30,000 were reported to have laboured at Bassein Airport without pay (The Guardian, London, 12 July 1994); and a dam at Inlay Lake, which is related to a proposed tourist development at Moebye on the Biluchaung River; reportedly villagers and civilians have been ordered to clear the lake by hand.

59.  In 1996 the Government of Myanmar admitted that prisoners are "contributing labour at project sites" and, in a reference reflecting the scale of the practice, claimed that "over 23,000 ... have had their sentences reduced by as much as one-third" as a result: Memorandum of Observations, note 37 supra at 21.

60.  Conditions in prisons and labour camps, note 38 supra. For example, a 51-year old monk from Mandalay reportedly died from malnutrition and malaria on 18 Nov. 1994 after working in a malarial area. He had been arrested for his participation in the 1988-89 pro-democracy movement and sentenced to five years' hard labour in the Kachin State. idem, at 3.

61.  United States Department of State, Foreign economic trends report: Burma (June 1996) ("Economic trends"), p. 88. ("The available evidence strongly suggests large increases in the [Government's] use of uncompensated labour in regional and national construction projects, as well as in local rural development projects.")

62.  Ethnic groups, note 27 supra at 86.

63.  Entrenchment, note 48 supra at 15.

64.  See, e.g., Human Rights Watch/Asia: Burma: The Rohingya Muslims, ending a cycle of exodus? Vol. 8. No. 9(C) (Sep. 1996), p. 30.

65.  See, e.g., Beyond the law, note 51 supra at 50; Climate of fear, note 32 supra at 13.

66.  See, e.g., Paradise lost, note 57 supra at 20.

67.  See, e.g., Entrenchment, note 68 supra at 15 (a large number of people reportedly died of malaria during forced labour on a road construction project at Patao).

68.  In an interview published in the Bangkok Post of 18 October 1992, Lieutenant-Colonel Than Han of the Border Areas Development Programme explained that hill tribe people suffer from the climatic change when they come down to work on the plains: "They sweat a lot, they lose weight and they have some health problems". Ethnic groups, note 27 supra at 88.

69.  The UN Special Rapporteur on extrajudicial, summary or arbitrary executions has expressed concern at "persistent reports of arbitrary and excessive use of force by members of the security forces, who seem to enjoy virtual impunity", note 45 supra.

70.  Report of the Special Rapporteur, 1995, note 43 supra, para. 230.

71.  "The old and infirm are particularly vulnerable and have been beaten when they take rests or are thought to be working too slowly." Entrenchment, note 48 supra at 15.

72.  "In the northwest, a ... visitor to Chin State reported that a woman was killed while working on the Pakoku-Kalemyo railway line after she had stopped working twice to feed her young baby. The woman had been forced to take her baby with her to the site as all her relatives were also working on the railway." idem.

73.  A Karen Christian woman from Kyaukkyi township who fled to Thailand reported that she had been raped at knife-point by an army sergeant who had been supervising her work detail while she dug ditches. See Ethnic groups, note 27 supra at 113.

74.  idem, at 84.

75.  Rohingyas, note 64 supra at 30.

76.  idem.

77.  ACFOA, note 28 supra at 9.

78.  Cf. Article 19: Fatal silence? Freedom of expression and the right to health in Burma ("Health") (London, July 1996), p. 107 (UNICEF estimates that Myanmar's maternal mortality rate is 140 per 100,000, attributable to poor access to information about reproductive health and the illegality of abortions; 50 per cent of maternal deaths are estimated to be due to the performance of illegal abortions).

79.  idem, at 103.

80.  See, e.g., Climate of fear, note 32 supra at 20.

81.  Paradise lost, note 57 supra at 6.

82.  See, e.g., Seven years, note 40 supra at 26, 27; Human rights still denied, note 40 supra at 17, 18; Rohingyas, note 64 supra at 32.

83.  See, e.g., Rohingyas, note 64 supra at 29 (1,200 miles of roads to be built in Arakan State to facilitate military movement, and tourist development).

84.  See also RCE, 1995, note 9 supra and accompanying text (Committee of Experts' opinion that roads and railway projects do not constitute "minor communal" projects for the purposes of Convention No. 29).

85.  Economic trends, note 61 supra at 87.

86.  The percentage is most likely understated, since the Government's figures appear to value "people's contributions at the prevailing government daily wage rate. If the figures are adjusted to the higher, prevailing market rate, the value of people's contributions amounts to nearly 75 per cent in the years in question; idem.

87.  SLORC's allocation or foreign exchange to the armed forces is reflected in the US$1.2 billion contract for arms purchases between Myanmar and China reported in 1994; see, e.g., Paradise lost?, note 57 supra at 6; Economic trends, note 61 supra at 22 (China is one of the main suppliers of military acquisitions; defence spending on imports rose from US$20 million in 1988 and 1989 to US$390 million in 1991).

88.  See, e.g., Ethnic groups, note 27 supra at 84; EarthRights International and Southeast Asian Information Network: Total denial (July 1996) ("Total denial"), p. 33 (construction of military barracks on Heinze Island, associated with the building of the Yadana pipeline; see notes 90-96 infra and accompanying text); the people of Arakan are also forced to help with the construction of barracks for the NaSaKa, a border policing unit; Rohingyas, note 64 supra at 29.

89.  See, e.g., idem, at 36 (construction of military barracks near the pipeline route); Manerplaw, note 32 supra at 12-14 (villagers reported they had been forced to dig latrines, cook, water gardens and cut bamboo for the military); Amnesty International: Myanmar: Human rights violations against Muslims in the Rakhine (Arakan) State, AI: ASA 16/06/92 (Oct. 1992) ("Human rights violations"), p. 6 (Muslims reported that they had been forced to build military camps, to construct or improve roads between camps, and to work within camps looking after livestock, digging bunkers, cleaning latrines, and washing soldiers' uniforms).

90.  See, e.g., Ethnic groups, note 27 supra at 89 (since 1992 over 30,000 people reportedly have been forced to work on the Ye-Tavoy railway).

91.  Paradise lost?, note 57 supra at 16-20. A pipeline is to be constructed from a point in the Andaman Sea past Heinze Island, then across approximately 65 miles of the Tenasserim division and into Thailand, where the gas will ultimately be consumed. See, e.g., Total denial, note 88 supra at 1.

92.  Work on the pipeline route has mainly consisted of clearing the jungle by hand. Related infrastructure work has included construction of barracks in the area to house SLORC battalions moved into the region to provide security for the pipeline. idem.

93.  See, e.g., John Doe I., etc. et. al. v. Unocal Corp. et. al., docket No. 96-6959 LGB (C.D. Cal.), complaint filed in US Federal Court, 3 Oct. 1996, paras. 37-182; National Coalition Government of the Union of Burma and the Federation of Trade Unions of Burma v. Unocal. Inc. (suits prepared in anticipation of showing proof on a preponderance of the evidence). See also letter from Beth Stephen, Center for Constitutional Rights, dated 21 March 1995 to Mr. Roger Beach, CEO, Unocal Corporation, p. 2.

94.  Memorandum of Observations, note 57 supra. at 20, 21 (there is no forced labour in Myanmar; the people contribute their labour voluntarily).

95.  See, e.g., Total denial, note 88 supra at 9.

96.  Paradise lost?, note 57 supra at 19; there has been "considerable disagreement" between the various groups reporting on alleged forced labour practices in the region, and the oil companies involved in the work, as to the relationship between the railway and the pipeline. At the very least, however, the completion of the railway will facilitate transport of SLORC troops and their supplies into the area, and the portion completed already has been used for this purpose; Total denial, note 88 supra at 14.

97.  Ethnic groups, note 27 supra at 88-89.

98.  See notes 56-58 supra and accompanying text.

99.  Memorandum of Observations, note 57 supra at 16; "More information construction of Yangon-Mandalay Union Highway", Myanmar News Agency, 23 Jan. 1996.

100.  Memorandum of Observations, note 57 supra at 16.

101.  idem, at 20 (section entitled "Traditional contribution of labour" referring to attaining merit through the practice of "contributions of labour"); used in reference to what the ILO has considered forced 1abour. Notes 12-26 supra and accompanying text.

102.  Paradise lost?, note 57 supra at 24. As of 15 July 1995, registered foreign investment in Myanmar's hotel and tourism sector rated second in worth only to the oil and gas sector; Jeremy Mark, "Western firms remain hesitant about investing in Burma in contrast to Asians' enthusiasm", Asian Wall Street Journal, week of 4 Sep. 1995, pp. 1, 8.

103.  See, e.g., Burma Action Group: Burma. The alternative guide (Jan. 1996), p. 21, referring to Appendices III and IV.

104.  N. Chan: "A culture of coercion", Burma Issues, Jan. 1995, pp. 2, 3.

105.  Cf. Villages Act 1908, s. 12 (chapeau) and Towns Act 1907, s. 9A, notes 106-110 infra and accompanying text. Complainants rely on an extremely reliable source and will provide copies of the said laws as soon as available.

106.  Villages Act 1908, printed in Burma Code, Vol. VI (1979) (in pertinent part) (emphasis supplied).

107.  Memorandum of Observations, note 57 supra at 22.

108.  See notes 12-26 supra and accompanying text.

109.  On 19 February 1992 the SLORC announced in the New light of Myanmar that a large number of laws were to be repealed, having been found to be "no longer in conformity with the changing circumstances, [or] not been in use for a very long time [or] laws for which there are no reasons for use in future ...". State Law and Order Restoration Council, Law No. 1/92, The Working People's Daily, 20 Feb. 1992, pp. 1, 7 and 8. A list of some 137 laws was appended. State Law and Order Restoration Council Law No 4/93 similarly announced the repeal of another 14 laws, The Working People's Daily, 1 Apr. 1993, pp. 1, 6. As of March 1996, the SLORC announced that 151 laws had been repealed, 35 "old" laws and 78 "subsidiary" laws were also said to have been repealed and replaced by new laws, Memorandum of observations, note 57 supra at 18.

110.  In 1996, the Government stated that it "had started the process of amending these two laws ...", Memorandum of Observations, note 57 supra at 22; this statement was further explained by a Government representative to the Conference Committee in June, who indicated that a board formed to monitor the progress of the review of the Villages Act 1908 and the Towns Act 1907 had met three times in the previous year, as a result of which the draft of a new unified law had been submitted to the Laws Scrutiny Central Body for approval, International Labour Conference, 83rd Session, Provisional Record (Geneva, 1996), p. 14/56, and see the discussion of the proceedings of the Conference Committee notes 13-15 supra and accompanying text. The content of the draft law was not revealed. Cf. the Government's statement made to the Committee of Experts in 1968, note 4 supra and accompanying text.

111.  The UN Special Rapporteur in Myanmar was provided with copies of certain secret directives concerning the practice of forced labour, during the course of his visit to Myanmar in 1995, Report of the Special Rapporteur, 1996, note 32 supra add. 2, 3.

112.  idem, at para. 141.

113.  Burma Code, Vol. VIII (1979) (in pertinent part) (emphasis supplied).

114.  International Labour Conference, Record of Proceedings, 14th Session (Geneva, 1930), p. 61, referred to in International Labour Conference, 65th Session, Report III (Part 4A), Report of the Committee of Experts, General Survey of the Reports relating to the Forced Labour Convention, 1930 (No. 29) and the Abolition of Forced Labour Convention, 1957 (No. 105), 1979 (Geneva, 1979) ("1979 General Survey"), para. 21, n. 3; and in International Labour Conference, 52nd Session, Report III (Part 4), Report of the Committee of Experts, General Survey on the Reports concerning the Forced Labour Convention 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105), 1968 (Geneva, 1968) ("1968 General Survey"), para. 27, n. 3.

115.  As provided for by Article 1(1) of the Convention. Further, "penalty" should be construed together with, and in light of the other limb of the definition of "forced or compulsory labour" that the person performing the work or services did not offer themselves voluntarily, cfr. Article 2(1) of the Convention.

116.  Villages Act 1908, s. 12, Towns Act 1907, s. 9A. The relevant provisions are set out in full, section III.C.1 supra. The Committee of Experts and the Conference Committee have both determined that the existence and the operation of these laws are inconsistent with Myanmar's obligations under Convention No. 29. Notes 5-15 supra and accompanying text.

117.  Cf. RCE, 1996, note 11 supra at 85 (case concerning Japan: the conditions in which Korean "comfort women" were forced to provide sexual services during World War II amounted to "sexual slavery" that would have been contemplated by Convention No. 29; the women would have been entitled to wages and other benefits of employment).

118.  See, e.g., "Child labour", ILO doc. GB.265/2 (Geneva, Mar. 1996), para. 32 (Convention No. 29 "enables the ILO to examine practices with regard to child labour which amount to forced labour within the meaning of the Convention"; this has been done for "some ten years").

119.  See the discussion in section IV. D.4 infra.

120.  For a discussion of the effect of payment on the exceptions of Article 2(2), see note 150 infra and accompanying text.

121.  US Committee for Refugees, USCR site visit to Bangladesh (20 June-1 July 1996) (Washington, D.C., 1996) (recent arrivals in Bangladesh from Arakan State report Rohingyas are disproportionately subject to forced labour and that forced labour periods extended to several weeks each month, reducing time available to farm); Beyond the law, note 51 supra at 46-49; Amnesty International: Myanmar: Human rights still denied, AI: ASA 16/8/94 (Nov. 1994), pp. 15-17.

122.  International Labour Conference, 83rd Session, Provisional Record, Report of the Committee on the Application of Standards (Geneva, 1996), pp. 14/56-14/58.

123.  See the discussion at notes 88, 89 supra and accompanying text.

124.  International Labour Conference, 83rd Session, Provisional Record, Report of the Committee on the Application of Standards (Geneva, 1996), pp. 14/56-14/58.

125.  Between 800,000 (statement of the Workers' delegation to the Conference Committee, 1996, idem, at 14/57) and 2 million (estimate of Human Rights Watch/Asia: Entrenchment, note 48 supra at 14) people have been used to date.

126.  RCE, 1993, note 7 supra, case of Myanmar, at para. 3; RCE, 1996, note 11 supra at para. 3; see also note 9 supra and accompanying text.

127.  Article 24 Report, note 17 supra at para. 52.

128.  See notes 11, 12 supra and accompanying text.

129.  See notes 85-87 supra and accompanying text.

130.  See notes 90-97 supra and accompanying text.

131.  See note 57 supra and accompanying text.

132.  See note 58 supra and accompanying text.

133.  See note 104 supra and accompanying text.

134.  Article 4(2).

135.  Article 4(1).

136.  The text of the secret directives is discussed at notes 111, 112 supra and accompanying text.

137.  See notes 105-110 supra and accompanying text.

138.  Memorandum of Observations, note 57 supra at 22.

139.  idem; for a discussion of the difficulty in researching the current law of Myanmar, see Beyond the law, note 51 supra at 3-4.

140.  See, e.g., Memorandum of Observations, note 57 supra at 20-23; submissions of the Government of Myanmar to the Article 24 Committee, note 17 supra at para. 24; note verbale dated 4 Nov. 1994 of the Permanent Mission of the Union of Myanmar to the United Nations Office at Geneva, containing the response to the Report of the Special Rapporteur, 1994 (note 43 supra), reproduced in the Interim Report of the Special Rapporteur in UN doc. A/49/594/Add.1 (28 Oct. 1994), para. 3 (paras. 24-28 of the note verbale reiterate the position that recruitment of porters is in accordance with the law, that they are well treated and that there are regulations to this effect).

141.  See the discussion in section III supra.

142.  See generally ILO, Governing Body, minutes of the 261st Session, ILO doc. GB.261/PV(Rev.) (Geneva, Nov. 1994), para. 61.

143.  International Labour Conference, 75th Session, Report III (Part 4A), Report of the Committee of Experts (Geneva, 1988) ("RCE, 1988"), p. 75 (case concerning Burundi: Measures must be taken to make the public aware of the repeal of legislation which formerly permitted the exaction of forced labour). Cf. RCE, 1993, note 7 supra at 109 (case concerning Liberia: The continued practice of forced labour after the repeal of laws which formerly authorized it demonstrated the need for publicity).

144.  RCE, 1993, note 7 supra at 93 (case concerning Brazil: The Government must take "systematic action commensurate with the dimensions and gravity of the problem ...").

145.  International Labour Conference, Report III (Part 4A), Report of the Committee of Experts (Geneva, 1994, p. 140 (case concerning Thailand: The Government should formulate legislative responses to widespread child labour as part of "a comprehensive legal framework").

146.  idem, at 112, case concerning Liberia (the Government should facilitate strict observance of the prohibition on forced labour by ensuring adequate labour inspection, particularly in those sectors thought to be affected by the problem).

147.  See notes 111, 112 supra and accompanying text.

148.  See notes 150-165 infra and accompanying text.

149.  See note 112 supra and accompanying text.

150.  In exempting certain types of labour that would otherwise be "forced or compulsory" under the Convention, Article 2(2) is silent on the question of payment. The silence reflects the irrelevance of the question of payment to the determination of whether a certain type of conduct is exempt from the Convention. See also the discussion on the relationship between payment and compulsion at notes 119, 120 supra and accompanying text.

151.  See, e.g., Memorandum of Observations, note 57 supra at 10-11.

152.  See notes 32-34 supra and accompanying text (methods of apprehension for portering and other forced labour practices).

153.  1979 General Survey, note 114 supra at para. 34.

154.  See generally section III supra (lengthy work assignments, heavy construction and portering duties, participation in military activities and minesweeping, forced sexual services, fatal or serious diseases and injuries).

155.  Prisoners may choose to work for private individuals, so long as the working relationship between a prisoner and the private beneficiary is analogous to that of a freely entered employment relationship, 1979 General Survey, note 114 supra at para. 97.

156.  idem, at para. 94, and note 4 (referring to the 1968 General Survey (note 114 supra), at para. 78; also to the Universal Declaration of Human Rights, UN GA Res. 217A, UN doc. A/810, articles 7-11, (1948); and the International Covenant on Civil and Political Rights, UN GA Res. 2200 adopted 16 December 1966, entered into forced 23 March 1976, UN GAOR 21st Session, Supp. No. 16, UN doc. A/6316, articles 14, 15).

157.  For an analysis of the operation of the military tribunals, judged against the international standards to which the General Surveys refer, supra note 114, see the Lawyers Committee for Human Rights: Summary injustice: Military tribunals in Burma (Apr. 1991) ("Summary injustice"); Beyond the law, note 51 supra at 34-40 (concerns about fair trials according to international standards in Myanmar's civilian and military courts); International Commission of Jurists: The Burmese way: To where? Report of a mission to Myanmar (Geneva, Dec. 1991), pp. 37-54 (Chapter 3: The rule of law and the legal system, concerning laws of the SLORC and the system of military tribunals).

158.  See generally, idem.

159.  See, e.g., Reuters. Sep. 1996, conviction upon arrest of aide to Aung San Suu Kyi, available on Internet.

160.  1979 General Survey, note 114 supra at para. 36.

161.  Only one dissident group is still in open conflict with the Government. See, e.g., the statement by His Excellency U Ohn Gyaw, Chairman of the delegation of the Union of Myanmar to the United Nations, New York (3 0ct. 1995), p. 5.

162.  1979 General Survey, note 114 supra at para. 66, citing 1968 General Survey, note 114 supra at para. 54.

163.  1979 General Survey, note 114 supra at para. 37.

164.  RCE, 1988, note 143 supra at 95 (case concerning Tanzania: minor communal service does not include forced labour, pursuant to law, to implement schemes for agricultural and pastoral development, for construction of works or buildings for the social welfare of residents, or in establishment of any industry or construction of any public utility).

165.  idem.

166.  Article 24 Report, note 17 supra paras. 50, 51. Convention No. 29 provides that States parties may continue to use forced or compulsory labour after their ratification, "during the transitional period, for public purposes only and as an exceptional measure, subject to the conditions and guarantees" subsequently provided, Article 1(2). The guarantees include the provisions in Articles 7-19 and 22-24 of Convention No. 29, 1979 General Survey, note 114 supra at para. 7.

167.  The proceedings of the supervisory bodies of the ILO are properly regarded as a source of international labour law, to which weight should be given. See generally Valticos: International Labour Law (1979), pp. 61, 62.

168.  See note 1 supra and accompanying text.

169.  Article 1(3).

170.  See note 114 supra and accompanying text.

171.  1979 General Survey, note 114 supra at para. 7.

172.  1968 General Survey, note 114 supra at para. 22 (the nature of the undertaking is to suppress forced labour and, after the Convention comes into effect for the country, neither to introduce new forms of forced labour, nor to reintroduce forms which had been abolished).

173.  1979 General Survey, note 114 supra at para. 7

174.  See note 25 supra and accompanying text.

175.  Or even any act of acknowledgment, Nuclear tests cases (Australia v. France) (New Zealand v. France), Judgement of 20 Dec. 1976, ICJ Reports.

176.  idem, pp. 269-70, paras. 50-51, and pp. 474-5, paras. 52-53.

177.  idem, p. 267, para. 44. and pp. 472-3, para. 47.

178.  Frontier dispute: Judgement, ICJ Reports 1986, p. 584, para. 40.

179.  More relevantly, there is no question of a transitional period in this case, Article 24 Report, note 17 supra at paras. 50, 51.

180.  idem.

181.  The conditions and guarantees for the transitional regime are found in Articles 7-19 and 22-24 of the Convention, 1979 General Survey, note 114 supra at para. 7; see also 1968 General Survey, note 114 supra at paras. 19, 20.

182.  See notes 90-104 supra and accompanying text.

183.  See notes 85-87 supra and accompanying text.

184.  Article 8 provides that the responsibility for recourse to forced labour, although delegable, must rest with the highest civil authority. Article 23 provides that complete and precise regulations governing the use of forced labour should be promulgated, and should contain rules permitting complaints from any person from whom forced labour is exacted. Article 24 provides that the regulations governing the use of forced labour should be strictly enforced through methods of inspection.

185.  See notes 11, 112 supra and accompanying text.

186.  Article 9 provides that before recourse to forced labour, any authority competent to exact forced labour must satisfy itself that the work is "of important direct interest for the community" from whom the labour is exacted (Article 9(a)); that the work is of present or imminent necessity (Article 9(b)); that it has been impossible to obtain voluntary labour by the offer of wages and conditions comparable with those prevailing in the relevant area (Article 9(c)); and that the performance of the work will not lay too heavy a burden on the population (Article 9(d)).

187.  See generally section III supra.

188.  See the discussion at notes 160-162 supra and accompanying text concerning whether there is an emergency within the meaning of Article 2(2)(d).

189.  See notes 54-87 supra and accompanying text.

190.  Article 10 provides that forced or compulsory labour exacted as a tax is to be progressively abolished, except in accordance with the same determinations as required under Article 9. See notes 186-189 supra and accompanying text. In addition, the Article requires that the forced labourers be allowed to remain at their habitual residence and that respect for religion, social life and agriculture be observed (Articles 10(d), (e)).

191.  Article 11 provides that only able-bodied males between the ages of 18 and 45 should be conscripted for duty as forced labourers; where they are required to work it should be subject to a medical examination, exemption for certain groups, and respect for communal and personal needs.

192.  See, e.g., note 36 supra and accompanying text.

193.  Article 12 provides that there must be a limit of 60 days forced labour in any year, and that people who have performed forced labour should receive certification of their period(s) of service.

194.  See note 35 supra and accompanying text.

195.  Article 13 requires that working hours and rates of pay should be equal to those prevailing for voluntary labour, and a weekly day of rest should be granted. Except in the case of forced labour as a form of tax, in accordance with Article 10, forced labour should be remunerated at prevailing rates of pay, and precautions should be taken to ensure that those who perform forced labour receive their wages.

196.  Article 15 stipulates that workers' compensation laws shall apply equally to forced labourers as they do to voluntary labourers, and in any case the authority using forced labour is responsible for maintaining the subsistence of any person who is incapacitated as a result of performing forced labour.

197.  See, e.g., Article 24 Report, note 17 supra at para. 41 (Article 24 Committee noting the Government of Myanmar's assertion that the Workmen's Compensation Law is applied in the case of porters).

198.  See notes 43-49 supra and accompanying text (porters suffer gross human rights abuses), and notes 66-73 supra (gross human rights abuses are routine during forced labour on development projects).

199.  Article 16 requires that measures should be taken to ensure that people are not moved to different parts of the country in which their health may be affected or, where that is necessary, to ensure gradual acclimatization. Similar measures should be taken in cases where people are forced to labour at work to which they are not accustomed.

200.  Article 17 provides that in cases where forced labour is to endure for extended periods, measures should be taken to ensure appropriate medical care is available, that the subsistence of the workers' families is ensured, that the cost of the workers' journeys to and from the workplace (including any return by reason of illness or injury) are borne by the authorities, and that workers are given the opportunity to stay as voluntary labourers following their period of compulsory labour.

201.  Article 18 mandates that forced labour for the transport of persons and goods is to be "abolished within the shortest possible period". Where it is used during the transitional period, care is to be taken for the health of the workers performing the work; regulations should limit the duration and nature of the work they are required to perform; and care should be taken to maintain the community from which the workers come.

202.  See generally notes 27-53 supra and accompanying text.

 

Appendix II

Observation of the Myanmar Government on the
initial complaint and supplementary evidence made
by 25 Worker delegates to the 83rd Session
of the International Labour Conference under
article 26 of the ILO Constitution

Part I. Introduction

1. A group of 25 Worker delegates to the 83rd Session of the International Labour Conference, held in June 1996, filed a complaint against the Government of the Union of Myanmar under article 26 of the ILO Constitution for non-observance of the provisions of the Forced Labour Convention, 1930 (No. 29), reserving the right to supply additional information and supplementary evidence in this regard.

2. The Government of the Union of Myanmar accordingly made a prompt reply in October 1996 to the ILO Director-General on the concrete measures taken by the Myanmar Government to abolish recourse to forced labour as a gesture of response to the above-mentioned complaint.

3. However, the Worker delegates once again submitted the supplementary evidence on 31 October 1996 to the Director-General in support of their initial complaint to be brought to the attention of the forthcoming session of the Governing Body to be held in March 1997.

4. Consequently, the information was transmitted to the Myanmar Government by the Director of the International Labour Standards Department on behalf of the Director-General of the International Labour Office to enable the Myanmar authorities to make necessary observations on the allegations of the complainants.

5. The Myanmar Government, accordingly wishes to provide a detailed reply and information relevant to the findings and allegations of the Worker delegates.

The Government's initiatives for the emergence
of a peaceful, modern and developed nation

6. Before responding to the allegations, the Myanmar authorities wish to point out the sincere endeavours being made by the Government for the perpetuation of the national integrity and sovereignty and for safeguarding the long-term national interests.

7. Myanmar has witnessed in so short a time grisly reverses to the political, economic and social life of the nation just before the present government came to shoulder the responsibility of the State in 1988. It cannot be denied that the State Law and Order Restoration Council Government saved the nation which was on the brink of disintegration.

8. Since then, systematic and prudent steps have been taken to steer the nation to obviate undesirable and harmful consequences. The Government has successfully achieved its goal in the restoration of law and order throughout the country.

9. It may be pointed out that it is the present Government which opened up the country politically and economically. A market-oriented economy has been adopted in place of a centrally planned socialist system. And concrete steps are being taken to implement a multi-party democracy system. Thanks to the efforts of the Government, the market-economic system has now started to flourish in Myanmar and consequently it has induced increasing foreign investments.

10. Realizing the need for a new enduring state constitution which will ensure the emergence of a truly democratic multi-party system, the State Law and Order Restoration Council formed a National Convention Convening Commission. A National Convention is being held to lay down basic principles for the drafting of a new state constitution with the consensus of the participating delegates representing all walks of life, different union nationalities and different ethnic minority groups.

11. With the emergence of the new state constitution, the political and administrative pattern will take a new shape and form within the framework of the multi-party democracy system in the near future. In other words, the present Government is, in actual sense, laying down firm foundations for a new democratic government which will govern Myanmar under the new state constitution.

12. Infelicitously, the sincere steps taken by the Government for the maintenance of law and order have been portrayed in some circles as acts of repression. The development endeavours for all-round development of the nation have also been looked at cynically. It is to be borne in mind that it is the present Government that has opened up the country economically and in a large measure politically.

13. Moreover, it is an undeniable fact that the relentless efforts of the Government have resulted in peace and stability that prevails throughout the length and breadth of the country. National reconsolidation has been restored as a result of negotiations, mutual trust and understanding among the national brethren. These are the significant achievements in our efforts at establishing peace and national unity which will lead to the drafting of a new state constitution.

14. During the tenure of the present Government, the leaders have been taking every necessary measure to build up Myanmar as a peaceful, modern and developed nation. To achieve that goal, clear-cut political, economic and social objectives have been laid down which are to be observed by all walks of life.

The four political objectives are:

The four economic objectives are:

The four social objectives are:

Building infrastructures throughout the nation

15. In order to effectively undertake the tasks of ensuring stability of the State, prevalence of law and order as well as peace and tranquillity of the State and forging national reconsolidation, transportation within the country must be smooth, speedy and secure. This will also facilitate and expedite trading and public transport. It is indeed one of the crucial components in the nation building endeavours.

16. To fulfil this need, railroads and motor roads are being built throughout the country. These development works are aimed not only at regional development but also for all-round development of the nation. The economic and social life of the communities can be improved only when there prevails efficient transportation services.

17. As of today, it has linked 12 states and divisions by means of railroads. Altogether 544.79 miles of railroads have been built during the period of State Law and Order Restoration Council Government. Thanks to these new railroads, the economic, education, health and social conditions of residential people of these areas which have lagged behind in development for several decades are now enjoying unprecedented improvements. These transportation and communication links emerged through the collective efforts of the State, the people and the members of the Myanmar armed forced (Tatmadawmen). People living in the states and divisions are now enjoying the fruits of these collective efforts. There is enough evidence that these rail lines serve the interest of the local populace. There are regions like Zeebya in Pakokku township where travelling other than on foot is impossible during the five-month period of rainy season which can now be travelled by train all the year round. Likewise, most of the sections between Kalemyo and Gangaw which remain isolated during the rainy season because of flood and soggy mud are now accessible by train all year round. Besides, the people can now enjoy the advantage of spending less for travel by train as the fare is much lower than that of bus fare.

18. These are the vivid examples that active participation of people is very important for a nation in the making. From construction of roads, irrigation facilities, schools, hospitals, market places, parks and others to building of new towns and all spheres of construction, the working people and members of the Myanmar armed forces have toiled with vigour and enthusiasm not only for the benefit of a community in a strict sense but for the benefit of the nation as a whole.

A nation has its own significant characteristics

19. Every nation has its own characteristics of special significance and ethos. Traditions and mores of one country may be totally different from another country. Each country has its own historical background and different conditions. These dissimilarities largely stem from history, geography, climate and environment, etc. It is natural that these characteristics play a dominant role in influencing the making of policies and adoption of national goals to be achieved. It is therefore necessary to have an understanding and cognition of the background history, culture and traditions as well as the objective conditions and the attitude of the people of the country concerned. The case relating to Myanmar is no exception. Indeed, the foregoing observations are especially applicable to Myanmar.

Part II. Refutal to the allegations

20. Having set forth the background and facts of the situation prevailing in Myanmar, the authorities now wish to address the allegations made by the Worker delegates and in doing so, the Myanmar authorities wish to place this refutation under three main headings: Public purposes (or) Public sector; Private benefit (or) Private sector; and the law.

A. Public purposes (or) Public sector

(a) Portering

(b) Construction of development and infrastructure projects
by the Government

(c) Hotel industries in Myanmar

B. Private benefit (or) Private sector

Construction of Yadanar natural gas pipeline

C. The law

Part III. Conclusion

21. The Myanmar authorities wish to reiterate that they are aware of the critcisms made by some Worker delegates relating to the use of labour in Myanmar for national development projects. In fairness, they wish to point out that a considerable portion of the criticisms relating to Myanmar are unfortunately based on biased and specious allegations made by expatriates living outside Myanmar. These expatriates are people who wish to denigrate the Myanmar authorities for their own ends. The Myanmar authorities had made an effort to answer, in all sincerity, the questions addresssed to them. A sincere, frank and respectful submission has been made in this observation to be placed before the members of the Governing Body. The Myanmar authorities sincerely hope that the members of the Governing Body, including the signatories to the letter addressed to the Director-General of the ILO will, in their wisdom, understand and accept the explanations or refutations made in this observation.

22. The Myanmar authorities earnestly hope that a decision will be made by the members of the Governing Body that there is no need to form a commission of inquiry relating to Myanmar. On their part, the Myanmar authorities give their pledge to continue and further their cooperation to uphold the letter and spirit of the ILO Constitution with the invaluable assistance of the International Labour Office.

 


Appendix III

Rules for the hearing of witnesses

1. The Commission will hear witnesses proposed by the parties, subject to its right to decline to hear any witness. Where it adopts this course it will state its reasons for so doing. The Commission may call such other witnesses as it considers appropriate.

2. The Commission shall hear all witnesses in closed session. However, it may decide otherwise at the joint request of the parties. All information and evidence presented to the Commission in closed session shall be treated as confidential by all persons who are permitted by the Commission to be present during such session.

3. The Government of Myanmar and the complainants will be requested to designate a representative to act on their behalf before the Commission. These representatives shall be present throughout the hearings and shall be responsible for the presentation of their witnesses. The representatives of the parties shall notify the Commission 48 hours in advance of the language in which the evidence will be given, in order that interpretation may, if needed, be arranged by the Commission.

4. A witness may not be present except when giving evidence.

5. The Commission reserves the right to consult the representatives in the course of, or upon the completion of, the hearings in respect of any matter on which it considers their cooperation to be necessary.

6. The opportunity for the parties and the witnesses to give evidence and to make statements is provided to enable the Commission to obtain factual information on the case before it. The Commission shall give them all reasonable latitude to furnish such information, but it will not accept any information or statements which are not relevant to the issues referred to it.

7. The Commission, upon application by a witness or his/her representative, reserves the right to permit a witness to give evidence or make a statement to the Commission without the need to disclose name, address or information which could identify the witness. Such identifying information of a witness must, however, be provided to the Commission which will treat such information as confidential.

8. In order to carry out its functions effectively, the Commission requires and the Government of Myanmar will assure that it will not obstruct the attendance and giving of evidence of witnesses, and that no sanction or prejudice to witnesses or their families will occur as a consequence of their appearing or giving evidence.

9. The Commission will request each witness to make the following initial declaration:

"I solemnly declare upon my honour and conscience that I will speak the truth, the whole truth and nothing but the truth."

10. Subject to Rule 6, each witness will be given an opportunity to make a statement before being questioned. If a witness reads a statement, six copies of the text shall be supplied to the Commission.

11. (a) All questioning of witnesses will be subject to control by the Commission.

12. The Commission reserves the right to recall witnesses.

 


Appendix IV

List of documents received by the Commission
following its First Session


Submitted by

Page

 


1

Forced labour in Burma (1995-96)

Burma Peace Foundation

0001

2

Reply to the Commission (5 July 1997)

Government of Singapore

2037

3

Images Asia: "No childhood at all" (November-December 1995)

Friends World Committee for Consultation

2038

4

Reply to the Commission (19 July 1997)

Yukong Limited

2039

5

Testimony: European Commission GSP hearings on forced labour in Burma (2 October 1996)

Project Maje

2040

6

Dacoits Inc. (June 1996)

Project Maje

2041

7

Forced-labor logging in Burma (Rainforest relief, June1997)

Project Maje

2042

8

Forced labour on infrastructure development projects in Burma's Tenasserim Division (Mon Information Service, March 1997)

Project Maje

2052

9

ABSDF Report (8 February 1997)

Project Maje

2064

10

RSO Newsletter (15 January 1995)

Project Maje

2065

11

Council Regulation (EC) No. 552/97 (24 March 1997)

European Council

2069

12

Burma: The alternative guide (2nd ed., 1996)

Burma Action Group

2071

13

Burma News (Spring 1997)

Burma Action Group

2099

14

Burma News (Summer 1997)

Burma Action Group

2107

15

KHRG No. 95-01 "SLORC orders to villages: Set 95-A" (5 January 1995)

Karen Human Rights Group

2115

16

KHRG No. 95-13 "Summary of types of forced portering" (11 April 1995)

Karen Human Rights Group

2146

17

KHRG No. 95-14 "SLORC orders to villages: Set 95-B" (1 May 1995)

Karen Human Rights Group

2152

18

KHRG No. 95-15 "SLORC orders to villages: Set 95-C" (2 May 1995)

Karen Human Rights Group

2164

19

KHRG No. 95-17 "SLORC orders to villages: Set 95-D" (22 May 1995)

Karen Human Rights Group

2232

20

KHRG No. 95-22 "SLORC orders to villages: Set 95-E" (2 July 1995)

Karen Human Rights Group

2233

21

The situation of children in Burma (1 May 1996)

Karen Human Rights Group

2271

22

KHRG No. 96-08 "SLORC orders to villages: Set 96-A" (20 February 1996)

Karen Human Rights Group

2272

23

KHRG No. 96-09 "SLORC orders to villages: Set 96-B" (23 February 1996)

Karen Human Rights Group

2273

24

KHRG No. 96-22 "SLORC orders to villages: Set 96-C" (27 May 1996)

Karen Human Rights Group

2274

25

KHRG No. 96-29 "SLORC orders to villages: Set 96-D" (29 July 1996)

Karen Human Rights Group

2275

26

KHRG No. 96-30 "SLORC orders to villages: Set 96-E" (31 July 1996)

Karen Human Rights Group

2276

27

KHRG No. 96-35 "SLORC orders to villages: Set 96-F" (10 December 1996)

Karen Human Rights Group

2277

28

KHRG No. 97-04 "SLORC orders to villages: Set 97-A" (16 March 1997)

Karen Human Rights Group

2337

29

KHRG No. 97-06 "Relocations in the gas pipeline area" (20 April 1997)

Karen Human Rights Group

2365

30

KHRG No. 97-C1 "Commentary" (28 July 1997)

Karen Human Rights Group

2375

31

KHRG No. 97-08 "Abuses and relocations in Pa'an district" (1 August 1997)

Karen Human Rights Group

2389

32

Forced labour in Burma: Submission to the International Labour Organization Commission of Inquiry (7 August 1997)

Karen Human Rights Group

2421

33

Reply to the Commission (6 August 1997)

UNHCR

2433

34

Reply to the Commission (24 July 1997)

Government of Canada

2437

35

Additional information submitted on behalf of complainants (11 August 1997)

ICFTU

2438

36

Burma: SLORC's private slave camp (and executive summary) (June 1995)

ICFTU

2442

37

Commission européenne SPG/4/96 (6 May 1996)

ICFTU

2536

38

Rapport présenté au Comité des préfèrences généralisées

ICFTU

2564

39

Proposal for a Council Regulation (European Council, 8 December 1996)

ICFTU

2580

40

EC Economic and Social Committee "Opinion" (26 February 1997)

ICFTU

2587

41

European Parliament Report (10 March 1997)

ICFTU

2594

42

Forced labour on the Ye-Tavoy railway (MIS, December 1996)

ICFTU

2615

43

The situation of the people living in the gas pipeline project region (Mon Information Service, March 1997)

ICFTU

2645

44

Nowhere to go (Images Asia, April 1997)

ICFTU

2657

45

Forced labour in Burma: An international trade union briefing

ICFTU

2658

46

ICFTU letter to complainants (14 July 1997)

ICFTU

2666

47

Submission to the ILO Commission of Inquiry (see documents 101-104 for attachments, which arrived later under separate cover)

Australian Council for Overseas Aid

2668

48

Reply to the Commission (11 August 1997)

TOTAL

2674

49

English translation of document 48

TOTAL

2681

50

Letter from TOTAL to International Federation of Human Rights (26 November 1996)

TOTAL

2686

51

MGTC compensatory procedures

TOTAL

2695

52

Code of conduct

TOTAL

2703

53

Le Projet Yadana

TOTAL

2706

54

The Yadana Gas Development Project (English version of document 53)

TOTAL

2745

55

Projet Yadana. Voyages de presse

TOTAL

2784

56

Reply to the commission (31 July 1997)

Government of Sri Lanka

2840

57

Letter from US Department of State to the ILO Director-General (16 July 1997)

Government of United States

2841

58

Federal register notice of Department of Labor (DOL) hearings on forced labor in Burma

Government of United States

2844

59

Transcript of DOL hearings

Government of United States

2845

60

Written opening statement of Andrew J. Samet (DOL)

Government of United States

2945

61

Written testimony of Bo Hla-Tint (NCGUB)

Government of United States

2946

62

Written testimony of Win Naing (FTUB)

Government of United States

2950

63

Written testimony of Phil Fishman (American Federation of Labor-Congress of Industrial Organizations)

Government of United States

2955

64

Written testimony of Amnesty International

Government of United States

2957

65

Written testimony of Mike Jendrzejczyk (Human Rights Watch)

Government of United States

2964

66

Written testimony of the International Labor Rights Fund

Government of United States

2982

67

Written testimony of EarthRights International

Government of United States

3015

68

Documents in litigation against Unocal

Government of United States

3059

69

Written submission of Dana Dean Doering, Child and Adolescent Mental Health Specialist

Government of United States

3241

70

Submission for the hearing record submitted by Unocal

Government of United States

3263

71

Submission by Ernest Z. Bower, US-ASEAN Business Council

Government of United States

3311

72

Forced labor in Chinland (Chin National Council)

Government of United States

3315

73

Forced labour (NCGUB)

Government of United States

3327

74

Child labor (NCGUB)

Government of United States

3361

75

No childhood at all (Images Asia)

Government of United States

3371

76

TOTAL denial (Earth Rights International & Southeast Asian Information Network, July 1996)

Government of United States

3372

77

Report the facts (Karen National Union, Mergui-Tavoy District)

Government of United States

3482

78

French TOTAL Co's and American Unocal Corp's Disastrous Gas Pipeline Project (Mon Information Service)

Government of United States

3483

79

Conditions in the gas pipeline area (KHRG)

Government of United States

3484

80

Forced labour in Mon areas (KHRG)

Government of United States

3485

81

Effects of the Gas Pipeline Project (KHRG)

Government of United States

3486

82

The situation of children in Burma (KHRG)

Government of United States

3487

83

Endless nightmares in the black area (Mon Information Service)

Government of United States

3488

84

(Video) Excerpts from "No childhood at all" (Images Asia)

Government of United States

85

Reply to the Commission (13 August 1997)

Amnesty International

3489

86

Extrajudicial execution and torture of members of ethnic minorities (May 1988)

Amnesty International

3494

87

Allegations of ill-treatment and unlawful killings of suspected political opponents and porters ... (September 1988)

Amnesty International

3574

88

Continued killings and ill-treatment of minority peoples (August 1991)

Amnesty International

3582

89

Human rights violations against Muslims in the Rakhine (Arakan) State (May 1992)

Amnesty International

3598

90

"No law at all" (October 1992)

Amnesty International

3628

91

The climate of fear continues (October 1993)

Amnesty International

3674

92

Human rights developments (July-December 1993)

Amnesty International

3704

93

Human rights still denied (November 1994)

Amnesty International

3726

94

"No place to hide" (June 1995)

Amnesty International

3756

95

Conditions in prisons and labour camps (September 1995)

Amnesty International

3800

96

Human rights after seven years of military rule (October 1995)

Amnesty International

3812

97

Kayin (Karen) State: The killings continue (April 1996)

Amnesty International

3848

98

Beautiful country, brutalised people (1996)

Amnesty International

3870

99

Ethnic minority rights under attack (July 1997)

Amnesty International

3878

100

Burmese Muslim asylum seekers fleeing to Bangladesh could face forced labour and other hardships if returned (July 1997)

Amnesty International

3904

101

Excerpt from US Embassy "Country commercial guide -- Burma" (July 1996)

Australian Council for Overseas Aid

3905

102

Holidays in Burma? (1996)

Australian Council for Overseas Aid

3912

103

Slave labour in Burma (May 1996)

Australian Council for Overseas Aid

3920

104

11 b&w transparencies, allegedly showing forced labour

Australian Council for Overseas Aid

3921

105

Reply to the Commission (15 August 1997)

Government of New Zealand

3932

106

Presentation of the Burma Centrum Nederland to the Commission

Burma Centrum Nederland

3933

107

Extracts from "Rape, forced labor and religious persecution in Northern Arakan" (Human Rights Watch, May 1992)

Burma Centrum Nederland

3939

108

"UN helps return Burmese to forced labor" (The Gazette, Montreal, 29 December 1994)

Burma Centrum Nederland

3945

109

MSF's concerns on the repatriation of Rohingya refugees from Bangladesh to Burma (May 1995)

Burma Centrum Nederland

3946

110

UNHCR information bulletin (June 1995)

Burma Centrum Nederland

3953

111

The situation in northwestern Burma (KHRG No. 96-06)

Burma Centrum Nederland

3963

112

Extracts from "Repatriation of Burmese refugees from Thailand and Bangladesh" (Australian Council for Overseas Aid, March 1996)

Burma Centrum Nederland

3976

113

UNHCR mission report, Myanmar (27 February-28 March 1996)

Burma Centrum Nederland

3979

114

Article published in "The Mustard Seed" (Zunetta Liddell, May 1996)

Burma Centrum Nederland

3986

115

Burma Centrum Nederland News (May 1996)

Burma Centrum Nederland

3989

116

New Burmese refugees pose dilemma for UN agency ... (Reuters, June 1996)

Burma Centrum Nederland

3990

117

Extract from "Voluntary repatriation and reintegration: Bangladesh/Myanmar" (UNHCR, September 1996)

Burma Centrum Nederland

3992

118

Extract from "The Rohingya Muslims: Ending a cycle of exodus?" (Human Rights Watch, September 1996)

Burma Centrum Nederland

3994

119

Portering and forced labour (Amnesty International, September 1996)

Burma Centrum Nederland

3997

120

Update on the Rohingya situation in Bangladesh and Burma (Human Rights Watch, October 1996)

Burma Centrum Nederland

4000

121

Burmese Muslims allege torture and forced labor in Myanmar (United States Information Agency, July 1997)

Burma Centrum Nederland

4001

122

Burmese refugees (Voice of America, July 1997)

Burma Centrum Nederland

4002

123

Burmese Muslim asylum-seekers fleeing to Bangladesh (Amnesty, July 1997)

Burma Centrum Nederland

4004

124

Forced labour in Arakan (Rakhine) State (August 1997)

Burma Centrum Nederland

4005

125

Nowhere to go (April 1997)

Images Asia

4008

126

The situation for Muslims in Burma (May 1997)

Images Asia

4027

127

No childhood at all (revised ed., June 1997)

Images Asia

4140

128

Migrating with hope (July 1997)

Images Asia

4224

129

Transcript of Daw Aung San Suu Kyi's address to the EU GSP hearings

Images Asia

4282

130

Miscellaneous copies of SLORC orders obtained by Images Asia (1992-97)

Images Asia

4286

131

(Video) No childhood at all

Images Asia

132

(Video) Caught in the crossfire

Images Asia

133

(Video) Daw Aung San Suu Kyi's video address to the EU GSP hearings

Images Asia

134

Forced labour (Chin Human Rights Organisation)

Images Asia

4335

135

Refugee Case No. 1 (Chin Human Rights Organisation)

Images Asia

4343

136

The Chin refugee conditions in India (Chin Refugee Committee, April 1997)

Images Asia

4350

137

Forced relocation and human rights abuses in Karenni State, Burma (ABSDF, May 1997)

Images Asia

4385

138

Forced labour on infrastructure development projects in Burma's Tenasserim division (Mon Information Service, March 1997)

Images Asia

4419

139

Life in the country (Mon Information Service, July 1997)

Images Asia

4420

140

Forced portering after NMSP-SLORC ceasefire agreement (Human Rights Foundation of Monland, September 1996)

Images Asia

4478

141

Human rights abuses related to TOTAL Co. and UNOCAL's Gas Pipeline Project (Human Rights Foundation of Monland, November 1996)

Images Asia

4496

142

The forced relocation in the southern part of Burma and accompanying human rights abuses (Human Rights Foundation of Monland, December 1996)

Images Asia

4514

143

Interviews with Shan refugees (Shan Human Rights Foundation, July 1996)

Images Asia

4533

144

Interviews with Shan refugees (Shan Human Rights Foundation, August 1996)

Images Asia

4535

145

Monthly reports, (Shan Human Rights Foundation, January-May and July 1997)

Images Asia

4539

146

Shan refugee updates, (Shan Human Rights Foundation, May and July 1997)

Images Asia

4589

147

Uprooting the Shan (Shan Human Rights Foundation, December 1996)

Images Asia

4601

148

Lahu, Wa and Palaung Human Rights Committee Report on Forced Labour (June 1997)

Images Asia

4679

149

Written testimony of Mike Jendrzejczyk (Human Rights Watch)

Human Rights Watch/Asia

4680

150

No safety in Burma, no sanctuary in Thailand (July 1997)

Human Rights Watch/Asia

4681

151

Transcripts of five interviews conducted in June 1997

Human Rights Watch/Asia

4711

152

Reply to the Commission (18 August 1997)

Government of Malaysia

4727

153

Ethnic groups in Burma (1994)

Anti-Slavery International

4728

154

Forced labour in Burma: Additional documents 1996-97

Burma Peace Foundation

4802

155

Photocopy picture descriptions: Set 94-B (KHRG, September 1994)

Burma Peace Foundation

5448

156

Photo description list: Set 95-A (KHRG, May 1995)

Burma Peace Foundation

5496

157

Photo description list: Set 96-A (KHRG, February 1996)

Burma Peace Foundation

5529

158

Miscellaneous photos with description (KHRG)

Burma Peace Foundation

5567

159

Reply to the Commission (27 August 1997)

Government of India

5576

160

La Birmanie, TOTAL et les droits de l'Homme: dissection d'un chantier (English version contained in document 154, pp. 4962-4997)

International Federation of Human Rights

5577

161

Reply to the Commission (28 August 1997)

Burma Issues

5631

162

Forced labor in Burma: The Yadana Gas Pipeline Project

EarthRights International

5632

163

Forced labor in Burma: The Ye-Tavoy railway

EarthRights International

5633


Appendix V

List of documents received by the Commission
following its Second Session


Submitted by

Page

 


164

Human Rights Yearbook 1996, Burma (Human Rights Documentation Unit of NCGUB, July 1997)

Submitted following the hearings by the ICFTU

7606

165

Communication from TOTAL (23 December 1997)

TOTAL

8277

166

Communication from TOTAL (4 March 1998), with report on pipeline area by Commission for Justice and Peace

TOTAL

8280

167

All quiet on the western front? (February 1998)

Images Asia

8288

168

Atrocities in the Shan State (Amnesty International, 15 April 1998)

Burma Peace Foundation

8380

169

KHRG No. 98-02 "SLORC orders to villages: Set 98-A" (1 March 1998)

Karen Human Rights Group

8404

170

Wholesale destruction: The SLORC/SPDC campaign to obliterate all hill villages in Papun and Eastern Nyaunglebin district (April 1998)

Karen Human Rights Group

8436

171

KHRG No. 98-C1 "Commentary" (19 April 1998)

Karen Human Rights Group

8508

172

Human rights in rural Burma (30 April 1998)

Karen Human Rights Group

8530

173

School for rape (February 1998)

EarthRights International

8536

174

KHRG No. 98-03 "Killing the Shan" (23 May 1998)

Karen Human Rights Group

8598

175

KHRG No. 98-04 "Attacks on Karen Refugee Camps" (29 May 1998)

Karen Human Rights Group

8657

176

Documents and video tapes

Permanent Mission of Myanmar

8706


Appendix VI

List of documents received in the course of the hearings


Submitted by

Page

 


H1

The announcement of State Peace and Development Council's notifications (and other related documents) (15 November 1997)

Edith Mirante (Project Maje)

5652

H2

A Chin compendium (Project Maje, September 1997)

Edith Mirante (Project Maje)

5665

H3

Extrajudicial execution, torture and political imprisonment of members of the Shan and other ethnic minorities (Amnesty International, August 1988)

Donna Guest (Amnesty International)

5699

H4

Human rights violations against ethnic minorities (Amnesty International, August 1996)

Donna Guest (Amnesty International)

5729

H5

Rohingyas -- The search for safety (Amnesty International, September 1997)

Donna Guest (Amnesty International)

5747

H6

SLORC orders (1997) (originals seen by Commission, and photocopies and translations certified as correct)

Min Lwin

5767

H7

Submission to the ILO Commission of Inquiry (Human Rights Watch/Asia, November 1997)

Zunetta Liddell (Human Rights Watch/Asia)

5795

H8

No safety in Burma, no sanctuary in Thailand (Human Rights Watch/Asia, July 1997)

Zunetta Liddell (Human Rights Watch/Asia)

5811

H9

Burma Acts VI and III of 1907

Zunetta Liddell (Human Rights Watch/Asia)

5841

H10

The Burma Village Act 1907 and Executive Orders

Zunetta Liddell (Human Rights Watch/Asia)

5855

H11

All quiet on the western front? (Images Asia, November 1997)

Representative of Images Asia

5876

H12

Maps to accompany H11 (Images Asia, November 1997)

Representative of Images Asia

5926

H13

Foreign economic trends report: Burma, 1997 (US Embassy, Rangoon)

Douglas Steele

5929

H14

Forced labor acknowledged by the regime in Burma (November 1997)

Douglas Steele

6084

H15

Video, with independent translation of the relevant part, and written extract from Dutch television archives identifying the video material (5 June 1996)

Representative of Burma Centrum Nederland

6187

H16

Map of Myanmar indicating pipeline route and alternative

Douglas Steele

6189

H17

IGN map of pipeline area

Douglas Steele

6190

H18

Joint operations map of Ye-Tavoy area

Douglas Steele

6191

H19

Payment of money to villagers hired by the army, with effect from 2/12/95 to 17/1/96

Douglas Steele

6192

H20

Testimony of Terry Collingsworth, with appendices (November 1997)

Terry Collingsworth (International Labor Rights Fund)

6193

H21

KHRG No. 97-10 "SLORC orders to villages: Set 97-B" (KHRG, 14 September 1997)

Kevin Heppner (Karen Human Rights Group)

6349

H22

KHRG No. 97-C2 "Commentary" (KHRG, 20 September 1997)

Kevin Heppner (Karen Human Rights Group)

6373

H23

KHRG No. 97-11 "Clampdown in southern Dooplaya" (KHRG, 18 September 1997)

Kevin Heppner (Karen Human Rights Group)

6383

H24

KHRG No. 97-09 "Free-fire zones in southern Tenasserim", with annex (KHRG, 20 August 1997)

Kevin Heppner (Karen Human Rights Group)

6409

H25

SLORC orders to villages: Set 94-D (KHRG, 24 August 1994)

Kevin Heppner (Karen Human Rights Group)

6493

H26

Letter from TOTAL Exploration Production to International Federation of Human Rights (26 November 1996)

Christine Habbard

6517

H27

Letter from International Federation of Human Rights to TOTAL Exploration Production (24 December 1996)

Christine Habbard

6526

H28

Letter from TOTAL to International Federation of Human Rights (28 July 1997)

Christine Habbard

6529

H29

Extracts from International Federation of Human Rights newsletter "La Lettre" (May-June 1997)

Christine Habbard

6532

H30

Annex A to "Yadana Project": Population characteristics and village questionnaires (TOTAL)

Christine Habbard

6536

H31

Extract from "Telerama" (5 March 1997)

Christine Habbard

6571

H32

Extract from "DS" (December 1997-January 1998)

Christine Habbard

6577

 

Appendix VII

 

Summaries of testimony

 

Ethnicity:

Chin

1

Age/sex:

Born on 20 April 1960, male

Family situation:

Oldest of a family of four

Education:

8th Standard

Occupation:

Farmer and subsequently truck driver (transportation of goods)

From:

Haka, Chin State (lived in Kalaymyo town, Sagaing Division for the 15 years up to his arrest)

The witness was arrested in Mung Zwa on 18 April 1994 and accused of possessing and transporting illegal political publications. He was tried (at the court of the Division) and sentenced to 12 years' imprisonment. He could not have recourse to the counsel of his own choosing, but was assigned a lawyer by the State. After his arrest he was transferred to a military camp, the name of which he did not know. He was subsequently sent to a prison labour camp, from which he managed to escape in October 1997. After his escape, he had to flee Myanmar through Mandalay, Kalaymyo, Tiddim and Champhai. Since then, he has not seen his family, which he presumed was still in Haka. During his imprisonment (1994-97), he had to break stones the construction of roads for two years from March 1995. Working conditions were extremely arduous: little food (one cup of rice), no shelter for sleeping. The workday generally began at around 7 a.m. and finished at around 10 p.m., without any break and often in very high temperatures. He worked with more than 700 prisoners. They were all chained at the waist and feet. The prisoners were regularly subjected to ill-treatment by the guards, who beat and kicked them and hit them with their weapons. The chains and dehydration made most of the prisoners sick. No medical treatment or medicines were given to the prisoners if they fell ill. Only prisoners who could no longer get up were excused from work. The bad conditions in the prison labour camp have resulted in the death of more than 200 prisoners. Several of his friends were beaten by the guards, who constantly boasted of being able to do what they wanted with the prisoners. He himself was beaten without knowing the reason for this physical punishment. The witness insisted that the prisoners were denied all their rights. At the time of his arrest, he was a member of the National League for Democracy (NLD) and supported Aung San Suu Kyi. Several prisoners were members of the National League for Democracy.

 


Ethnicity:

Chin

2

Age/sex:

19, male

Family situation:

Six (very elderly parents)

Education:

5th Standard

Occupation:

Family of farmers

From:

Thantlang town, Chin State

The witness came to India on 11 April 1997. His parents told him to leave Myanmar on account of the situation: forced conscription, forced labour and portering for the military. He was in sporadic contact with his family, which has remained in Myanmar; they have confirmed that the situation has not changed and that it was quite intolerable, given the military dictatorship running the country. It was impossible for the members of his family to do their own work. He had to work for the military since the age of 14 (1993). As a general rule, the work assignments were notified in writing, although the military could directly requisition the workers they needed. Portering. He had to perform portering duties for the military on six occasions. The military came directly to the village and ordered the persons present to carry their equipment. They also appropriated everything available, including food, bamboo, medicines, animals. Whenever the military came to a village in this way, the young people generally attempted to take flight but they were pursued into the jungle by the soldiers. To his knowledge, nobody carried out this work voluntarily. Road work. On two occasions, he had to work on the construction of the road between Haka and Thantlang. This road was approximately 60 miles from his village. The whole of his village received orders to send one person per family to work. Each assignment lasted 12 days, with three days of travel to the site and three days for the return. The work site was supervised by soldiers. The day commenced at 6 a.m. and ended at approximately 4 p.m. There was no shelter for sleeping purposes and the workers had to sleep close to the road or in the jungle. The workers had to bring all of their food and ask the women present to prepare it. They were allowed to eat at the end of the work day at about 10 p.m. The workers were often maltreated by the soldiers. Anyone attempting to escape was threatened with execution or incarcerated. He received no pay. It was always possible to bribe the soldiers in order to be exempted. Military camp work. On three occasions in 1993, 1995 and 1997, he had to work for a military camp situated close to his village. Each time, he stayed one day. His 16-year old sister also had to perform guard duty for the military camp as well as digging work.

In his eyes, the most unpleasant memories were associated with the porterage and road construction work. He is a member of the Chin National League for Democracy (CNLD).

 


Ethnicity:

Chin

3

Age/sex:

Born on 15 April 1972, male

Family situation:

Two sisters. Father deceased (former civil servant)

Education:

7th Standard

Occupation:

Truck driver

From:

Kalaymyo town, Sagaing Division

The witness, together with four other persons, was arrested by the military on 23 January 1994 and accused of having illegally transported drugs requiring a medical prescription. He was sentenced to ten years' imprisonment by a civil court before which he had an opportunity to present his defence. He lodged an appeal and was released on 21 September 1995. During his detention, he was transferred to various prisons in which he had to perform work in extremely difficult conditions. After his release, the witness had the impression that he was under surveillance by the internal police of Myanmar (CID). He found the situation unbearable and left for Mizoram, arriving in September 1997. He left Myanmar on account of the general situation there. The people have no rights. He has no contact with his family. He does not belong to any political group. He is nevertheless interested in the literature produced by opposition groups. As a matter of course, his entire village, including all of the members of his family, has had to work for the military. The orders issued by the military were passed down by the village head. It was always possible for those with some money to bribe the soldiers. The witness did not personally perform any forced labour. Since 1988, however, his sisters have had to perform certain work on a rotation basis (four weeks) at the Kalaymyo hydro-electric power station, as well as on the Thantlang road. In 1988, his younger sister was 12 years old and the elder 24. He has no information on what kind of work they had to perform. He does, however, know that they were not able to rest and that they were neither fed nor paid.

 


Ethnicity:

Chin

4

Age/sex:

Born on 28 February 1968, male

Family situation:

Mother alive; one of a family of seven children; older brother is a lawyer; the others are farmers

Education:

4th Standard

Occupation:

Farmer

From:

Thantlang town, Chin State

The witness was arrested on 5 June 1996, after the authorities suspected him of being a member of the Chin National Front (CNF). During the interrogation following his arrest, he was tortured. When he was released, he left Myanmar and went to India, arriving in mid-1996. All the members of his family have left Myanmar for Mizoram, including his lawyer brother, since they had become suspect in the eyes of the authorities following his departure. In general, his family did not have to perform any work for the military authorities since his father was a magistrate. However, exceptionally, on two occasions, he himself had to work for the military. The first time was between 4 and 15 January 1995. He had to participate in the building of the road between Haka and Thantlang. At that time, all his village was required to work on this project, including the members of privileged families such as those of judges. These families, which grouped together some 15 persons, were assigned to work on a specific stretch of the road which they had to finish within a specific period of time. Persons who were not able to finish the work were threatened with losing their jobs or forced to pay a fine (2,000 kyat). The work, which consisted principally of levelling the ground for the road, was arduous. They had to sleep near the road or in the homes of friends. The second time was in November 1995 when he was required to perform porterage work for the military authorities. Along with 13 other persons, he was apprehended by the military authorities when he was in Gu Kya, a small village near Thantlang. He had to go from Gu Kya to Thantlang. He had to walk without rest for a distance of approximately 12 miles.

 


Age/sex:

Born in 1973, male

5

Family situation:

Member of a family of seven children; parents still alive

Education:

6th Standard

Occupation:

Soldier since 1993

From:

Falam town, Chin State

The witness joined the army in 1993 at the end of his school apprenticeship since he had no other way of earning his living. The headquarters of his battalion was in Kachin State. He was the only person of Chin origin in his company. However, there were 16 soldiers of Chin origin in his battalion. His superiors were Burmese from Mandalay (in the company) or Yangon (in the battalion). He left the army because of the poor conditions: low pay, very poor food, very low morale among the troops. With regard to forced labour, he remembered that when he was still very young, his entire village always had to work for the military authorities who had a camp nearby. The call up for labour came from the military authorities but was transmitted by the village head. He himself had to cut wood and perform sentry duty. He carried out this work on a rotational basis with his brother. He did not want to do this work and was not paid for it. When he first joined the army he worked for one month as a guard in the prison camp at Namati, Kachin State. He had to supervise prisoners assigned to stone breaking for road construction. The working conditions were extremely arduous. The prisoners were regularly subject to severe physical ill-treatment. The prisoners were soldiers or civilians who had previously been sentenced by military courts (court martials) or civil courts (criminal proceedings). Their ages varied and they included children and the elderly. To the best of his knowledge, there were no political prisoners. He was subsequently sent to the front line on two occasions. The front line was mainly in the north of Shan State. Almost 4,000 soldiers were at the front line. The porters who were required by the military authorities were recruited from each village. His company, which was made up of between 30 and 40 men, had the services of between 17 and 18 porters. Men, women and children (8-9 years old) could be requisitioned to carry out this work. Several women worked as porters, since the men managed to escape leaving them as the only source of available labour. When fighting broke out, the porters were sent out ahead of the troops to detect any anti-personnel mines planted by the Shan rebels. Several porters were killed in these circumstances. The persons requisitioned were subjected to cruel treatment. If they did not walk fast enough, they were pushed and jostled. They had to porter from one village to another (rotation by village). He had himself beaten porters in accordance with orders received from his superiors. He had not seen any cases of sexual abuse but had heard of them. Complaints had been made, but no serious measures taken. When he was not at the front line, he was assigned to various military camps or remained at the headquarters of his battalion, where he could go about his own business. In the military camps, he had seen persons forced to work on the building of these camps. His experience covered four camps: (1) Namati, Kachin State -- prisoners' camp (already discussed above); (2) Nan Ya, Kachin State. The camp was already built when he was assigned there; (3) Paunghsai and Mong Ko, Shan State. In these camps, people (civilian and military) had to participate in their construction. The villagers were informed by the village head of the work to be carried out. The orders were given orally in the case of villages near the camp and in writing for the more distant villages. The work lasted for two or three weeks. It consisted of constructing the buildings, cutting wood and carrying out sentry duty. Working conditions were extremely arduous. The workers had no food and had to work without a break. They were regularly subjected to maltreatment, kicked and beaten. Even as a soldier he had sometimes had to work without being paid. Between 1994 and 1996, he worked without pay on four stretches of the railway between Mogaung and Mandalay, all in Kachin State: (1) Nan Ya (where he worked for three months); (2) Mogaung (where he worked for two months); (3) Myitkyina (capital of Kachin State) (where he worked for one-and-a-half months); (4) Sarhmaw (where he worked for three months). Between 250 and 300 unpaid soldiers worked with him, in addition to the prisoners. As far as he knew, there were no civilians. His worst memory was the situation at the front line, which was a drug trafficking area. Finally, the witness spoke of the cultivation of opium in Shan State and the fact that the army had ordered the population of this State to grow it. The drug was subsequently sold to Chinese interests. The witness came to India in 1996.

 


Ethnicity:

Rakhine

6

Age/sex:

Born in 1951, male

Family situation:

Eight

Occupation:

Hill cultivation of tobacco

From:

Sai Pai Pra, Paletwa township,(1) Arakan Yomav (village had 60 houses)

The witness left Myanmar in 1994 because of the conditions prevailing there, in particular the work which had to be done for the military. His whole family came with him to India. With regard to forced labour, he had to work as a porter for the military and work on the building of a road. Portering. He had to do portering for the army so often that he could not remember how many times. All his assignments were carried out in the Rakhine State. The first time was in 1982. He was taken by the army to Pi Chaung (on the border with Bangladesh). Sixty other villagers were with him. There were thirty soldiers. The portering lasted seven days. The porters also had to build the camps where the troops were stationed. The work consisted mainly of putting up bamboo spikes, digging trenches, fetching water, etc. The work was not voluntary and was not paid. Everybody of an age to do portering work was liable to be requisitioned. Where there were no men, women had to do it. Only the adults in his family did this work. The porters were cruelly treated by the soldiers. There was no food and the soldiers amused themselves by telling them to eat sand. If the porters fell behind, they were beaten (in particular, those suffering from polio). He suffered fever and hunger. On his other experiences of portering, he estimated that he was requisitioned for work by the army at least three times a month until he left. The assignments lasted between one and seven days. Each family had to provide one person to perform this work. In addition, four persons from his village had to be permanently available for the urgent needs of the military and for work at the army camp. When he was away, his family had to feed themselves with what they could find from the jungle. In his village, a girl had been sexually assaulted by drunken soldiers, who had offered drink to her father beforehand. Despite the complaint lodged with the superior officer, no serious action had been taken. Finally, his worst memories related to night journeys which he had to make as a porter. He had to make difficult climbs up hills and mountains in total darkness without directions. It was always possible to bribe the soldiers. In his case, he did not have the necessary money and had to perform the work. Road building. In 1992, he had to work twice on the building of the road between Matupi and Chaung Lawa. The work began at 6 a.m. and ended at 5 p.m. The first assignment lasted seven days, whereas the second was spread over four days. Each family had to provide one person to carry out this work. The order to work was transmitted by the village head, but did not come from the same soldiers who exacted the portering.

 


Ethnicity/religion:

Rakhine, Buddhist

7

Age/sex:

Born in 1966 (31 years old), male

Family situation:

Married with two children

Education:

2nd Standard

Occupation:

Hill cultivation

From:

Taryn, Paletwa township,(2) Arakan Yoma (village had more than 100 families)

The witness had to do work for the military up to his departure in 1995. His wife and children looked after his land while he was away. During these periods, they had to live on what they could find in the jungle. He did portering, and worked on the building of a military camp and a road. He left Myanmar with his wife and children. Portering. He was requisitioned to act as a porter more times than he could remember each year. He estimated that it was three or four times a month. The period when he had to do most portering work was in 1988. The soldiers requisitioned villagers for portering and transmitted their orders through the village head. Each family in the village had to provide one person to perform this work. Each assignment lasted between three and five days. He had to carry food and ammunition for the military. The loads were heavy. He was not given any breaks. He had to bring his own food, but he did not always have time to prepare it. The shelters for sleeping in had to be built on site, in the jungle. He also had to do sentry duty when the soldiers were sleeping. Men, women and children might be requisitioned. The treatment inflicted on them was cruel: beatings with bamboo canes were commonplace. If the porter was incapable of keeping up, he was beaten and abandoned in the jungle. He had heard that some people had died as a result of this maltreatment. It was possible to refuse only in the case of serious illness. However, the soldiers did accept bribes. The members of the army took everything: animals (chickens, pigs), food, etc. He had to work as a porter until his departure for India in 1995. Military camp. The military had a camp in his village. He had therefore had to work there countless times before he left. Among other things, he had to build huts and camp beds for the soldiers, cut and gather bamboo, put up fences and dig trenches. The assignments were of varied length, but could last as long as a month. Road building. In 1991, he had to work on the road twice between Kaladan River and Matupi. The first assignment lasted for seven days, while the second lasted for four. Half the families in the village had to do this work. Other villages were also requisitioned. Two to three hundred persons worked at the same time as him. The workers were subjected to cruel treatment: blows from bamboo canes and punches were frequent. He was personally beaten on two occasions because he could not swim. His worst memories were linked to portering and to the fact that it was very difficult to move about in the rainy season without adequate footwear.

 


Ethnicity/religion:

Rakhine, Buddhist

8

Age/sex:

22, male

Family situation:

Nine (him, parents, one older brother and five older sisters)

Education:

None

Occupation:

Farmer (paddy fields, and chillies in winter)

From:

Thazegone, Minbya township, Rakhine State (village had 90 families)

The witness had to work for the military from the age of 14 (1990). The first time he had to work for the army, he was required to grow produce for them. Subsequently, he had to work as a porter, on road-building and he also performed other work for the military. It was impossible to refuse to do the work. He was not paid. Agricultural work. This consisted of tending paddy fields and growing chilli peppers for the military who had appropriated agricultural land one hour's journey from his village. Ten persons from his village had to go. During the rainy season, he had to work on this land until very late into the night. Portering. He first had to work as a porter for the military at the age of 16. Subsequently, he had to do it once or twice a year. He had to carry food. His brother-in-law had been hung from a tree by his hands for one hour because he was absent from a portering assignment for which the military had requisitioned him. He was unable to walk for one to two weeks. Road building. He had to work on the building of three roads since the age of 15: Minbya-Ann (100 miles), Minbya-Myebon (60 miles) and Minbya-Sunye (local road). He had to do this work during the dry season once or twice a year. His whole village was requisitioned to do this work. It was divided into two groups, which worked in a pre-established weekly rota. Each family had to provide one person. Personally, he shared the work with his older brother. It took him two days' walking to get to his place of work. The work was difficult and consisted mainly of digging earth. He had to bring his own tools. Three to four hundred people worked with him on the roads. Soldiers supervised the work. These roads were mainly for the use of the military. He worked on these roads for the last time just before leaving in 1996. The workers were regularly subjected to ill-treatment. If they were late, they were beaten by the soldiers. The soldiers sometimes chained them up and used shackles on their legs. The soldiers would also force them to stay out in the burning sun for three or four hours. In general, the soldiers dealt harshly with the workers. He saw people seriously injured, suffering among other things from deep cuts as a result of being beaten with wooden sticks. He was not injured personally. But he did suffer hunger, fever and pains in the legs. Other work. On several occasions he had to gather wood (nipa palm, bamboo) for the fires needed to make bricks and for roofs (leaves). He also worked on the building of embankments for a river. He had also witnessed villagers having to work without payment on shrimp farms. The army had taken possession of certain shrimp farms. The shrimps were raised for export. Any civilian who tried to take these shrimps for their own use was beaten. In his view, the most difficult work he had to perform, because of his youth, was the cutting of leaves and bamboo. He would like to improve his education.

 


Ethnicity/religion:

Rakhine, Buddhist

9

Age/sex:

25, male

Family situation:

Parents alive, but elderly; he has two older brothers and two older sisters

Education:

4th Standard

Occupation:

Hill cultivation; family paddy farm (surface area: two sacks of rice seed)

From:

Kyaukke, Paletwa township, Arakan Yoma(3)

The witness had to leave Myanmar (in 1995) because he was afraid of portering and did not have the strength required to do the work. He and his brother had to do work for the military. However, his sisters had not done any. He had to do portering and had to work for a military camp. Portering. He had to do portering for the military three times a year since the age of 14 (1986). He had to transport food and go from one village to another. The assignment generally lasted one day. The porters were not fed, and if they did not bring their own rice, they had to try to satisfy their hunger with what they could find in the jungle. He was injured in the leg during one assignment and was unable to do portering for three years. The soldiers then asked him to put up fencing for the military camp (see below: Military camp). His brother, who was now 20, also had to do portering for the military on countless occasions. He estimated that his brother had to act as a porter for the military on average three times a month. They both began working as porters at about the same time. He said his brother had been maltreated by the soldiers. Military camp. He had to work for the military camp three times. He mainly had to put up fencing, dig trenches and build huts. His brother also had to work on the construction of military huts, on average three times a month. The work was carried out for the same camp. Generally, the work consisted of putting up fencing, digging trenches and building huts. Apart from these kinds of work, four persons from his village had to be kept on call for the army's urgent needs. Finally, his family, which had animals (chickens, pigs), was forced to keep them for the military, who took them from time to time without payment.

 


Ethnicity:

Rakhine

10

Age/sex:

Born in 1951 (46), male

Occupation:

Farmer

From:

Ra Pauk Chaung, Ponnagyun township, Rakhine State (there was a military camp close to his village at Ponnagyun)

The witness had to perform work for the military from the age of 14 (1964). Portering. On one occasion he had to transport goods for the army (rice and other rations) from one village to another. Road building. This began in 1995, with each village being assigned a section of the road to build. The road in question was that between Sittway (Akyab) and Kyauktaw, some 100 miles in length. This road was built during the dry season, but was damaged each rainy season. It was still impossible to use it today as it has never been completed. The military specified the work that had to be done to the Township Council. At that time, he was the clerk to the Township Council. As such, he had to supervise the work and take part in it personally. However, he lost his job in 1988. The workers had to bring their tools. They were not paid. They also had to bring their own food. When they could not go to work, particularly for reasons of illness, they were obliged to find a replacement. Verbal abuse from the soldiers was commonplace. Military camp. He worked there for a year. Other members of his family (elder brother, brother-in-law) worked for a long period once a year. The villages were grouped into tens, with each village having to work at the camp on a particular day. The work consisted of gathering bundles and building embankments. Apart from these different jobs, persons had to remain permanently on call for the army's urgent needs. Student Sports Festival, Sittway (Akyab) (14-17 December 1997). He had to work for two to three months like the rest of his village on the preparation for this festival. His township was particularly affected by this festival since it took place in this area. The work consisted of cutting bamboo and wood and transporting the canes and logs to the festival site. In his view, the SLORC military regime was the most brutal military dictatorship the country has ever known. It was impossible for the citizens to sell their produce freely.

 


Ethnicity:

Chin

11

Age/sex:

49, male

Family situation:

Married with seven children

Education:

Master's degree in physics

Occupation:

Teacher (of physics) when he was in Myanmar; participated in the opposition movement against the Government

From:

Matupi town, Chin State (lived in Yangon before leaving Myanmar)

The witness was the ex-Chairman of the Delhi Burmese Christian Fellowship, ex-Secretary General of the Chin National Council, Secretary General of the Overseas Chin Theological Association. In 1969, when he was completing his second year of university in Yangon, he took part in the student movement against the military Government. Following his involvement, he was expelled from the university for two years. He subsequently returned to the university to complete his degree (BSc) in 1972. He continued his studies to MSc level. In 1974, he took part in the events related to U Thant's funeral. He was arrested, held in custody and sentenced to seven years' imprisonment. He was not allowed the counsel of his own choosing and the judicial procedure was summary. Together with a cell-mate, he set up a student organization to combat the military junta, which had as its main platform the overthrow of the junta. He was released on 20 July 1980 and returned to Matupi. He taught there until 1985. He subsequently returned to Yangon in 1985-86. He returned to Matupi in 1986 and was transferred to the school at Sabaungte village. He was later transferred to Matupi again in 1988. In March 1988, his former cell-mate contacted him to tell him that the student movement against the government had re-formed in Yangon. He then went to Yangon. He was one of the leaders who organized the movement for a national strike which was called on 8 August 1988. The situation then became very tense. The military were convinced that the strike movement had been started by senior students. They made death threats against them. At that point, he organized the escape of these students to Thailand. He personally left the country on 11 November 1988 with two other people. One of these returned to Myanmar and was probably now in prison; the other was in India. After leaving Myanmar, he went to Mizoram to a refugee camp (no longer in existence) for two months. On 2 February 1989, he arrived at Aizawl, the capital of Mizoram. There he founded the Chin National Front on 25 March 1989. Between March 1989 and 1992, he worked underground in the jungle along the Bangladesh-India-Myanmar border. Finally, he settled in Delhi in 1992 for health reasons. With more specific regard to forced labour, he personally performed forced labour in Matupi on several occasions in 1982 and 1984 when he was a teacher. In 1982, the inhabitants of the village were forced on several occasions during the year to work on the building of a road between Matupi and Paletwa. He personally had to pay 2,500 kyat to employ the services of a substitute (on several occasions). The Chief of the People's Council, U Thang Gwo, supervised the work. In 1984 he worked on the building of a road to the hydro-electric power-station two miles outside his village. He also worked on two occasions between 1982 and 1985 on the extension of the Matupi road. His sisters also worked on this. When he was teaching at the Sabaungte school, he had to take part in road-building for a week. He had to sleep in the jungle. It was the township authorities which ordered the work to be done. He could not refuse. All this time, he saw the inhabitants of the villages where he was living being forced to work for the military. He did not see any change after 1988 in the way the military resorted to civilian labour to carry out different types of work.

 


Ethnicity:

Chin

12

Age/sex:

33 or 34, male

Family situation:

Married

Education:

Economics

Occupation:

Student, Institute of Economic Sciences

From:

Lungler, Thantlang township, Chin State (lived in Yangon before he left Myanmar on 10 October 1988

(The witness had personal written notes.)

He was the former vice-president of the Chin Student Union. Member of the Chin Human Rights Committee of the Chin National Council. Editor of the Phuntungtu newspaper. He was involved in the student movement from his first year at university in 1984-85. He took part in the student demonstration of 6 September 1987, following the cancellation by the authorities in May of that year of certain bank notes (25 and 75 kyat). The universities remained closed until 26 October 1987. He also took part in the demonstration in March 1988. The universities were closed once again. At that point, he returned to Haka. In June 1988, the universities were reopened. He took part in the student demonstrations. He returned to Haka where he founded the Haka Student Union. He was involved as an organizer in the demonstrations which took place in Haka and Yangon. On 25 October 1988, the Chin Student Movement was created at Falam. He was then at Haka. He went to Falam a little later. He went there once again at the time when the military authorities were demanding that the sign-board of the union be taken down. After meeting with a refusal to do so, the authorities took it down themselves early the next morning. After this, he had to go into hiding. He left the country in his last university year. He feared arrest after five of his friends were arrested at Haka on 5 October 1988. He left Myanmar and went to India on 10 October 1989 to the Champhai refugee camp. He subsequently returned to Myanmar, to the region near the Thai border. On his experience of forced labour. Work for the military had to be performed in all parts of Chin State, but the Haka-Thantlang region was particularly affected because of the student festival to be held there. There was a military camp in his village. Since childhood he has therefore seen people being forced to work for the military, performing various types of work at the camp. He also saw portering. In his village, work for the military was mainly carried out between 1988 and 1995. The 150 families in his village each had to provide one person to perform this work. Road building. (1)  Between Haka and Thantlang, the work spread over two weeks. (2) Between Haka and Gangaw, the work began in 1986. He provided photos, taken in 1997, which showed the conditions under which the work on this road is carried out (document M10). He said they were sent to him by a college teacher. The notes beside the photos were written by him, following indications provided by the teacher who took them. He did not personally carry out work for the military because he was not in his village. University students were not generally requisitioned for this kind of work. However, college students and public officials could be. He said his cousin performed work for the military. This relative also left Myanmar for Mizoram in order to escape forced labour. Women must also perform work for the military. The work was not paid. He submitted various documents (documents M10 to M18). Several of these related to Mizoram.

 


Age/sex:

63, male

13

Family situation:

Married for 26 years with seven children

Occupation:

Minister of Social Welfare, National Coalition Government of the Union of Burma (in exile). (Elected MP in 1990, former Minister of Labour of NCGUB.)

From:

Sittway (Akyab) town, Rakhine State

In 1993-94, in preparation for the Students' Sport Festival in Sittway (Akyab), a lot of forced labour was imposed on the general population. For building a playing field, the 31 wards in Sittway township and 26 other townships had to take turns over six months for one day per week from 6 a.m. to 1 p.m., bringing their own food. The order had been given by the regional military commander in writing to the Township LORC and passed down to the Ward LORC chairman. No one was paid. Those who did not want to work had to pay 150 kyats to the LORC chairman, even if they were sick. A large signboard had been put up at every intersection stating that those who evaded the work would be arrested. Witness's own 15 year old son, the only child not attending school and free to do the forced labour, was hit with a plastic pipe when he returned late for his work shift from a lunch-time swim. A lot of forced labour was going on building and widening roads. Witness personally saw in Sittway (in December 1993) every day 3,000 to 4,000 people who worked on the road for six to seven months before the Student Sports Festival. His family constantly paid the Ward LORC to hire others to work in their place. Even old women and young girls were beaten if they did not work properly. When sick, they had to bring their own medicine. Large trees by the side of all the roads in the township were felled by prisoners and cut up, and the wood had to be put on trucks to be used as firewood by the army. Each tree had to be carried by four men, women carried only stones. People who did not show up for work were deprived of their identity cards and ration cards. For the Student Sport Festival also, apart from building roads and bridges, all the small huts alongside the road to the festival had to be destroyed, and the big houses renovated with tin roofs and repainted. The owners had to repair the pavement themselves, build a ditch alongside the road (or pay the municipal council to do it) and pay for the brick lining. Boat owners had to transport stones and wood for building a three-mile long road bridge, over 180 miles away, from Kyaukphyu to Sittway. Also, each township had to supply each day for about one-and-a-half months 1,000 eggs, 100 chickens, goats and pigs to a Government storehouse, purportedly for the Student Sport Festival, but the army took half. In Sittway (Akyab) they built simultaneously a Buddha museum and an archeological museum in 1993/94, and in the municipal area everybody had to bring stones, etc. Every Saturday, for either building, 500 people had to carry bricks, stones, concrete and sand. They were unpaid and brought their own food. For the whole of the Rakhine State, roads and bridges were built with forced labour, witness saw this himself in Kyaukphyu, Rathedaung and other places. In Rathedaung township in 1993 - 1994 all people had to build army barracks for 13 to 14 months. Every day 300 to 500 people. The order had been given from the military commander to the Township LORC, to the Ward LORC. Trees had to be cut down from a hilltop and the ground levelled. Then each family had to give 100 bamboo poles, each house five wooden posts and 100 nipa palm thatch sheets. They had to build the fence, dig toilets for the camp. For the soldiers' families to get food, the village people had to plant a vegetable garden and build a fence around it. Farmers had to prepare a rice field, plant the paddy, harvest, winnow, and bring the rice to a warehouse they even had to build themselves for the army. Men and women of all ages had to work. When a bit slow, the soldiers would beat them. He witnessed it. In the rice fields, women planted the rice, men ploughed. Young women also had to carry water uphill to the commander's house and wash his clothes.

As regards discrimination against families of politicians, when seven members of parliament in exile (including witness himself) signed a petition for the release of Aung San Suu Kyi, his eldest daughter and her husband lost their jobs as 2nd in charge and Township Manager of Government Fisheries, and his son's licence for running a ferry, for which he had paid 720,000 kyat (per year) was cancelled, the money gone. His wife and son were arrested for a few days, and his family was now under house arrest: his wife and son had to report twice daily to the police and report all their movements with reason, date and duration to the Township LORC.

 


Ethnicity:

Rakhine

14

Age/sex:

24, male

Family situation:

Single

Occupation:

TV electrician

From:

Mrauk-U town, Rakhine State

The witness left Myanmar in 1993. He had not personally performed work for the military. He was a student. He had, however, witnessed several incidents. Road building. He saw villagers working on the roads when he was going to the market at Kyauktaw. The work consisted of digging out embankments for the road. The ditch dug had sloping sides, so that the width of the ditch was around four feet at the bottom and around eight feet at road level. It was around four-and-a-half feet deep. One person from each group of ten houses had to work on this road. Each village taking part in the construction had around 200 to 300 houses. Each house had to provide one person. No member of his close family had worked on this road, but more distant relatives had, however, been called up for work. Men, women and children were called on to work. If the man was absent for whatever reason, he had to be replaced so that the one-person-per-house rule was kept to. For some villages, the work was carried out nearby, but for others it could be a day's walk away. In the case of the former, workers could go home; in the latter, they had to build shelters to sleep in. The workers had to bring their own food. Road-building work was done in the cold season, which was also the period of the rice harvest. It was impossible to refuse (for fear of reprisals by the armed soldiers). It was nevertheless possible for those with money to bribe the soldiers or pay a substitute. But even if the army was given money, there was no guarantee that those who paid would never be requisitioned since the money was generally kept by the soldier to whom it was given. The military were everywhere. The work was ordered by the regional command for the Rakhine State. The order was transmitted to the central command of the township. The village heads were then contacted to organize the work. The army supervised and ensured discipline. The soldiers checked everyone. In addition to the building work which they had to perform, they had also to meet all the needs of the military: food, water, etc. He did not witness any violent treatment, however, the soldiers used abusive language when they addressed the workers. The roads were poorly built. They were often built on rice-paddies and cattle tracks. They were therefore always in a damaged state. To his knowledge, it had never been possible to use them. Military camp work. The military camp of Taung Taung U was near Kyauktaw. The work was carried out in 1992/93. He was told that the persons working on the roads also had to go to the camp to carry out various types of work. Generally, the villagers had to keep animals for the use of the army, which appropriated them when patrols were made. The older men had to cut bamboo stems to make ropes from them for army use. The older women had to go and fetch water for the camp, which was located on a mountain top and had no water supply. Canal work. The canal was between the rivers Tu Myauk (a tributary of Kaladan river) and Yo Shaung. The work was carried out in 1992/93. The Yo Shaung had to be widened. The canal was 15 feet deep and 40 feet wide. Each village had a portion to dig. The work was done in ten days. It was possible to do it quickly because of the large number of villages which took part. He remembered the names of 17 villages which had been called upon: Bo Me Yo, Barawa Yo, Kwa Sone, Palaung Shaung, Aung Zaya, Bone Za, Kin Swin Shaung, Kauk Kyaik, Pale Shaung, Ouk Ta Bra, Na Prauk Se, Ohn Pati, Tin Braun, Wa Tawn, Kan Sauk, Ma Rwet Taung, Tu Myauk. There were others. The first village had around 300 families.

 


Ethnicity:

Rakhine

15

Age/sex:

34, male

Family situation:

Single

Occupation:

Representative of the committee of the Mizoram refugee camp

From:

Sittway (Akyab) town, Rakhine State

The witness recounted two recent events related to portering which had occurred in the Rakhine State. (1) On 16 November 1996, Shwe Thin, commander of Battalion No. 376, went to Kyak Ku Zu, Kyauktaw township with two other soldiers. It was around 4 p.m. He wanted to recruit porters. The village has 150 houses and each had to provide one porter. Shwe Thin organized a meeting to this end and set a time by which the necessary porters were to be recruited, threatening to exterminate the village's inhabitants if the order was not carried out in the time laid down. He came back an hour later and began shooting. Five persons were killed immediately. U Sein Hla Maung, village head, aged 45; U Tha Sin, group leader, aged 38; U Sein Thwin Aung, group leader, aged 42; U Twee Sein Aung, group leader, aged 50; Maung Nge, son of U Sein Hla Maung, aged seven. Ten other people were injured. Shwe Thin continued, entered a residence and killed its rich owner and those present: U Way Phu Aung, a rich man, aged 60; Daw Sein Ma She, his wife, aged 58; Ko Thein Twin Aung, their son-in-law, aged 37; Maung Than Htay, son of U Way Phu Aung, aged ten; U Thein Twin, aged 38; Maung Lay Win, a tradesman, aged 38; and U Tha Htway Phyu, a visitor from another village, aged 45. The daughter of U Way Phu Aung was injured, together with her two-year-old son and ten other persons. Some have died since. In the end, no porters were recruited. He knew the person who told him this story well. (2) In the second week of December 1996 around 8.30 p.m. at Sittway (Akyab), a high-ranking military man ordered a bicycle-rickshaw driver to take him to a distant place (seven miles away). The driver refused and was killed there and then. His wife was pregnant. He knew the person well who told him this story.

 


Ethnicity/religion:

Rakhine, Buddhist

16

Age/sex:

32, male

Occupation:

Buddhist monk

From:

Kyaukphyu town, Rakhine State

The witness was an official in the Indian section of the All Burma Monks Union/Arakan, an organization founded in Bangladesh in 1992, the Indian section of which was created in Delhi in May 1995. He related some events, of which he had personal knowledge, which related to forced labour. (1) In October 1991, in the village of Ngaloun Kyone, in the south of Kyaukphyu district, the inhabitants had to provide wood for the military (Battalion 34). Each house had to provide 200 18-inch pieces of wood. He personally saw inhabitants cutting the wood. They had to go into the forest. The work lasted a month. The workers were not paid. It was always possible to pay bribes (baskets of rice, tobacco, leaves, fermented fish paste, dried chillies, fish). The wood was used for building military huts near the border with Bangladesh. (2) In the village of Ngaloun Su, a 43-year-old man was ill. He asked a soldier if he could be exempted from the work (woodcutting). The soldier refused and ordered him to perform the work. The man refused and was beaten so badly by the soldier with a metal stick that his hip was broken. His screams produced a gathering of people. One person who said that the injured man should be sent to hospital was also hit. In the end, a doctor came and concluded that the man was in need of serious treatment. The soldier told him to attend to him. (3) In the village of Go Du, 1991, a soldier forced an old woman of 71 to go and gather wood in the jungle. She told him she was too old. The soldier insisted on having wood. The woman obeyed the order and died carrying it out. (4) In the village of Wa Bone Kyi, he twice saw villagers cutting wood for the purpose of building military huts. The first time, the villagers each had to provide 200 pieces of wood, while the second time the quota set was 700. A villager had told him that the village was unlucky because these inhabitants were always having to work for the army. (5) At Sittway (Akyab), during the first week of April a soldier was standing with a metal ring (four inches in diameter) near a jetty in the middle of the town. There were also pieces of wood of different sizes. Only the pieces of wood which had precisely the dimensions of the ring were kept. Those which were either too large or too small in diameter were rejected. These were the pieces of wood obtained from the forced labour mentioned above (see point 4). (6) In 1986, Kyaukphyu. Prison labour. Prisoners were in chains, as the authorities feared they might escape. The witness regarded this as cruel treatment even if it applied to prisoners. These prisoners were assigned to cutting wood. (7) In Mandalay in 1988 a road was to be built. A line was marked out to indicate the places through which the road should pass. All the house fronts which encroached over the line had to be "cut back" by the house owners without compensation.

 


Ethnicity:

Burman

17

Age/sex:

36, male

Family situation:

Married

Occupation:

President of the All Burma Student League

From:

Yangon

The witness was the president of the All Burma Student League. He had held numerous interviews with the villagers of upper Myanmar. He recounted three events connected with forced labour. (1) The building of the Pakokku-Kalaymyo-Htoma road in Magway and Sagaing Divisions. The work was unpaid. This was the first case he dealt with last year. (2) In December 1997, the construction using forced labour of a new airport in the village (now a town) of Htoma, near Kalaymyo. (3) Infrastructure that the authorities were building near to the Indian border on the Myanmar side, in particular, a road between Tamu and Kalaymyo. The workers were forced to work on this.

 


Ethnicity:

Rohingya

18

Age/sex:

48, male

Family situation:

Married with six daughters and two sons

Occupation:

Farmer with 16 khani (6 acres) of land

From:

Chit Chapandaw, Maungdaw township, Rakhine State(village had 25,000 to 30,000 inhabitants, it was situated close to a NaSaKa camp; population mainly Rohingyas)

The witness left Myanmar because (1) the Government had seized his land; and (2) he had been subjected to forced labour. He left Myanmar in early January 1998. It had become increasingly difficult for a Rohingya to travel freely in Myanmar (he could not, for example, go to Yangon). So far as the expropriation of his land was concerned, the NaSaKa seized his land five years ago to distribute it to the other inhabitants who were Rakhines. He said he received no compensation. Having been deprived of his land, he was taken on as a day labourer in the same village.

With regard to forced labour, his village was close to a NaSaKa camp. Orders to carry out work were given orally. They came from members of the NaSaKa who transmitted them through the village head. They informed the village head of their needs and he had to assemble the necessary labour. All the Rohingya men had to perform work for the NaSaKa. He did not see Rakhines doing this type of work. Three years ago (when he was 45), he had to (i) transport wood for construction; (ii) help with agricultural work; and (iii) work as a porter. Transporting wood. He had to do this more times than he could count. It was difficult to say how many times: when members of the NaSaKa needed him, they called for him. All men (women were not requisitioned for forced labour) had to do this work. Two men were required to transport wood. The total number of workers depended on the needs of the NaSaKa, but could be as many as 200. A whole day was needed for a single tree (it took three hours to cut down a tree). The forest was quite a long way from his village. It was always possible to give bribes to be exempted. Agricultural work. He had to help more times than he could count in growing rice on land held by Rakhines. This work was required in the two annual growing seasons and had to be performed three days a week during harvests, which lasted for two months. He was not paid. He was not given food. He had to bring his rice. The same persons were required to do this work as for the transporting of wood. There were no children. Portering. He had also worked as a porter for the NaSaKa and had to take food from one place to another more times than he could remember. He began at the age of 43 (five years ago) at a distance of three to six kilometres from his home. The assignments generally lasted a day. The same persons were required to do this work as for transporting wood. Lastly, he had to stand guard for the NaSaKa to intercept persons coming from the sea. He had to do sentry duty 12 nights a month. The same persons were required to do this work as for transporting wood. Treatment. He was threatened badly by members of the NaSaKa. He was beaten at least 25 times and had his hair cut off for falling asleep on the job. Two people were killed last year in his village by the NaSaKa. His view was that the NaSaKa used people as if they were beasts of burden. Taxes. The NaSaKa informed the village head of the amount of taxes and he had to see to it they were collected. People had ten days to pay. These were monthly taxes. The amount had increased over the years and fluctuated considerably depending on the building work undertaken by the NaSaKa. He had to pay these taxes since childhood. Only the Rohingyas had to pay these taxes. If people did not have enough money, they had to sell their property to pay the taxes.

 


Ethnicity:

Rohingya

19

Age/sex:

28, male

Family situation:

Married with wife and two children; parents

Occupation:

Farmer

From:

Chit Chapandaw, Maungdaw township, Rakhine State(village had 25,000 to 30,000 inhabitants)

The witness left Myanmar at the beginning of January 1998. When he was requisitioned for work, the order came from the NaSaKa who used the village head as an intermediary. The village head sent a messenger to inform the persons selected of the work they had to carry out. NaSaKa camp. He first had to perform work for a NaSaKa camp at the age of 18. The work involved cutting wood and building the camp. He had to perform carpentry work. On each occasion, the assignment lasted between ten and 15 days. He had been forced to carry out this work every year since then, as the buildings had to be renovated. He also had to repair the fences. He worked at the camp for the last time one-and-a-half months before his departure. Portering. He had to work as a porter from the age of 12. Men and children were requisitioned for this work when the NaSaKa had to transport materiels or munitions from one camp to another. He estimated he worked as a porter on average two or three times a month. Not all the portering work was for the same camps. The duration of the assignment depended on the length of the journey, but was generally for two days to cover between 16 and 20 kilometres. He last did portering work around 25 days ago. Shrimp farming. Since the age of 12, he had to work on a shrimp-farming project belonging to the NaSaKa. He had to work there twice a month each year during the two growing seasons. He had to perform this work every year. Since 1991, he has also had to help the Rakhines during the two annual growing periods. Sentry duty. Lastly, he had to stand guard from time to time. When this occurred, the work lasted 24 hours, uninterrupted. Treatment. The workers were beaten if they did not work according to orders received and at a satisfactory pace. He was beaten five or six times himself, the reason given in each case was for being slow. Taxes. The amount of taxes varied considerably. When an official of the NaSaKa visited the camp, the villagers had to pay. The amount of taxes varied depending on the number of visits.

 


Ethnicity:

Rohingya

20

Age/sex:

45, female

Family situation:

Widowed with two sons (one of whom is deceased), four grandchildren and one daughter-in-law

Occupation:

Farmer

From:

Kulung, Maungdaw township, Rakhine State (village had 1,300 families)

The witness left Myanmar at the end of December 1997. Her son was first requisitioned for forced labour at the age of 12. He had to perform forced labour until his death at the age of 30. He had to clean camps, build houses, and transport wood and sacks of rice. Her son had to work on average 14 days per month (in rotation). The schedule was not fixed, however, since the men were requisitioned as required by the NaSaKa. The other men in the village were subject to the same treatment. Members of the NaSaKa personally threatened her when she objected to them taking the fruit from a tree which was on her land. She heard that members of the NaSaKa had sexually assaulted women when the families objected to them taking their possessions.

 


Ethnicity:

Rohingya

21

Age/sex:

50, male

Family situation:

Married with wife, one son, two daughters and one son-in-law

Occupation:

Farmer (7 khani [2.6 acres] of land) and fisherman

From:

Chit Chapandaw, Maungdaw township, Rakhine State (village had 25,000 to 30,000 inhabitants)

The witness left Myanmar at the beginning of January 1998. He was forced to work for the military in Myanmar. Land cultivation. He had to do this for the Rakhines. Rice and peanuts were the crops involved. The growing season spread over three months. He could not do anything else during that period. Also, in the dry season, he had to clear the land and put up fencing. He was not paid. Portering. He had to do this twice a week (by rotation). The rest of the time he could work on his own land. Sentry duty. This was night work. On numerous occasions he witnessed acts of violence by NaSaKa members. There was a torture cell at the NaSaKa camp. The NaSaKa used stocks. These were used as a punishment for the workers who were ill or refused to work. He had personally been used more than once to pull a plough like a buffalo. On one occasion, 100 other people received the same punishment for being slow. The day lasted six hours. Finally, as regards taxes, twenty five per cent of his produce had to be given to the NaSaKa. He received no compensation for this.

 


Ethnicity:

Rohingya

22

Age/sex:

66, male

Family situation:

Married with three sons and one daughter

Occupation:

Farmer with 7 khani (2.6 acres) of land

From:

Mehru, Maungdaw township, Rakhine State

The witness left Myanmar at the end of 1997. There was a NaSaKa camp near his village in Rakhine. The camp was built by the men from his village. He said the NaSaKa had requisitioned him for work. His (eldest) son had given him the money to pay for a substitute. Each time, his son had to pay 50 kyat. He lost count of the number of times he had to pay. He estimated that he might have paid this sum on average five to seven times per month. The son had to use his savings or sell his possessions (chickens, chillies) to be able to give his father this money. His son (the eldest one, the others being too young) did work for the NaSaKa, particularly transporting wood from the forest to the camp. His son has had to bring wood to the camp at least ten times a month over the last twenty years. The son was beaten with a stick by NaSaKa members on three occasions because he was slow. He also had to pay taxes on numerous occasions. They had to draw on their savings to pay. If they did not have the money, they had to sell their possessions (livestock, chickens). The amount of the taxes varied. The witness told of his despair. He had no work, no country and no future.

 


Ethnicity:

All Rohingya

23 to 28

Age/sex:

65, male (witness 23); 30, male (witness 24), 58, male (witness 25); 35, male (witness 26); female (witness 27); and 24, male (witness 28)

From:

Various villages in Maungdaw township, Rakhine State

(Witnesses 23 to 28 were interviewed together)

The witnesses left Myanmar between one and two months ago. They had to do work for the NaSaKa on several occasions. Some of them had to work on average ten times per month (for instance, growing rice: witness 24). In early January 1998, witness 25 saw his son beaten because he fell asleep while on forced sentry duty for the NaSaKa. His son's leg was broken. he did not receive medical treatment. Witness 23 was used three times to pull a plough like a buffalo, as a punishment.

 


Ethnicity:

Rohingya

29

Age/sex:

45, male

Family situation:

Married with one son and three daughters

Occupation:

Farmer with nine khani (3.4 acres) of his own land

From:

Lamarpara, Rathedaung township, Rakhine State (military camp one km from his village)

The witness left Myanmar at the beginning of 1998 because of the forced labour, which prevented him from providing for his family's needs. The order usually came from the military, who passed it through the village head. All males over the age of 12 had to perform forced labour. It was not paid. He generally had to take his own food. He could not refuse. Each family had to provide one man. It was possible to pay a substitute or make bribes. In his case, he did not have the necessary money. He was maltreated on several occasions. He was given no medication or medical treatment. Construction of embankments. He had to do this approximately twice a week, every two months. Some 500 people worked with him. The work was overseen by a Rakhine. It was performed at a Government shrimp farm. He was neither paid nor compensated in any way whatever. He was physically maltreated. He was beaten on at least six occasions with a wooden stick when he took a rest. He did this kind of work four months before his departure. Agriculture. He had to bring his own plough. He had to do this one month a year for six years. A sector was assigned to ten families. The work generally began around 6.30 a.m. and ended at nightfall. He was allowed one hour's rest at lunchtime. He was not paid. He did not receive any rice in compensation. He was subjected to physical ill-treatment. Portering. He had to do portering two months a year for six-and-a-half years. The assignments lasted between one and four days each time. Around 120 other porters were requisitioned to work at the same time. He had to bring his own food. There were no shelters to sleep in. He had to carry goods and munitions for the military from one camp to another. He did not see any armed conflicts. The loads weighed around 40 kg. He was subjected to maltreatment, generally inflicted because he had not understood the orders (language problem). He was beaten at least twenty times (beaten with a stick and kicked). He reported back pains which are presumably the result of these beatings. Woodcutting. He had to cut the wood required for the building of soldiers' housing or to be sent to other districts. He had to do this work one week per month for six-and-a-half years. He could be away for more than a week on this work. He slept in the fields. On each occasion he worked with at least twenty other men. He did not have to pay taxes.

 


Ethnicity:

Rohingya

30

Age/sex:

30, male

Family situation:

Married with wife, mother, two brothers and four sisters

Occupation:

Owner of a small grocer's shop

From:

Nasil Para, Sittway (Akyab) township, Rakhine State (village had 4,000 to 5,000 inhabitants; the village was relocated some four years ago with other Rohingya villages. It was originally sited close to a main road. It was moved near to the sea.)

The witness left Myanmar at the beginning of 1998. He had to work for the military. He was not paid. No one could look after his business while he was away. All the Rohingyas had to do forced labour. His brothers and father also had to do forced labour. There was no woodcutting or transporting of wood in his area, since there was no forest. All the work was done for the military. He was physically ill-treated. Five days before his departure for Bangladesh, he was beaten because he had been unable to carry the load allotted to him. He suffered from back pains as a result of this beating. It was possible to pay bribes: 1,000 kyat would buy a week's rest. He did not personally have the resources to pay for a substitute. The orders came from the military, but were transmitted through the village head. The soldiers sometimes came directly to people's houses. One kind of forced labour he had to do was carrying stones. He had to do this three months a year for 15 years. Every working day involved ten trips with stones. The last time he had to do this was a fortnight before he left. The tools were provided by the military. The stones were mainly used in road-building. They had to be crushed. The road on which he worked was a seven kilometre road in the district of Sittway (Akyab). He also had to work building bridges. He also worked on the construction of military camps. Each family had to pay 50 kyat if a new military group came to the region. In addition, on one occasion he was taken as a porter to Shan State.

 


Ethnicity:

Rohingya

31

Age/sex:

45, male

Family situation:

Married with four daughters, four sons and two grandchildren

Occupation:

Rice farmer with 12 khani (4.5 acres) of land

From:

Kulung, Maungdaw township, Rakhine State (village had 300 families; several had left the village)

The witness arrived in Bangladesh with his family at the beginning of 1998. Orders for labour generally came from the military, but were transmitted through the village head. If the village head did not provide the necessary labour, the military came directly to the houses. When he was away, no one could tend his land. For that reason, he wanted his sons to do the work for the military. However, the army preferred him to his sons, as they were less strong (being around 15 years old). All the men in his village had to do work for the military. His brother was murdered after having denounced (in rudimentary English) the practices of the NaSaKa to the UNHCR. He was hanged. Building military camps. For six to seven years, he had to work on camp construction for around ten days a month. He had to make the wood and bamboo structures. One hundred and fifty persons were requisitioned for this work on each occasion. He also had to build houses for the Rakhines. He did this work five days before leaving for Bangladesh. He was paid. He was sometimes subjected to maltreatment. A man from his village had been killed five days before his departure for Bangladesh for having refused to do the work demanded of him. The family of the deceased had also left the village. Portering. He did portering for the military on more than a hundred occasions over three years. Between Kulung and Akyorata (24 km). The assignments generally lasted for a day. He had to do it four times a month. Between 100 and 150 persons were requisitioned each time. They all came from his village. He was paid 15 kyat (a negligible sum) by the NaSaKa for each assignment. If he fell behind, he could be beaten. The last time he had to act as a porter was the day before he left for Bangladesh. Clearing grass. He had to do this five times a month for six to seven years. He was not paid. He also had to pay 100 kyat per month to the NaSaKa in taxes.

 


Ethnicity:

Rohingya

32

Age/sex:

25, male

Family situation:

Single; two brothers (one deceased) and three sisters (father died in July 1991)

Occupation:

Farmer (rice paddies and vegetables) -- 16 khani (6 acres)

From:

Lawadok Pranshi, Buthidaung township, Rakhine State (village had 1,700 families)

The witness left Myanmar in the course of January 1998 because he could no longer tolerate the abuses of the authorities. The NaSaKa took his land from him in 1995, leaving his family only the ground on which their house stood. His father was killed by the NaSaKa after contacting UNHCR because one of his sons had not come home after an assignment. Work for military camps.  He had to do various different types of work for the battalion 21 camp: clearing the forest and carrying rations between the main road and the camp (one kilometre). He had to do this from 1995 onwards. As he no longer had any land, he worked for the military in the evening and was a day labourer by day. He occasionally received two kilos of rice and one kilo of dal. He had suffered ill-treatment. As the military camp was adjacent to his house, the soldiers came to fetch him directly or used a loudspeaker to call him when he was needed. He has been beaten because the pace of his work was not satisfactory. Some 2,000 people had been requisitioned to build one military camp. Portering for military operations. In April 1991 he worked as a porter for military operations in the hills against opposition forces. He had to carry the baggage. He had to do this on two occasions. Each time, 400 people had worked with him. He was not paid, but he was fed. The porters were frequently ill-treated. He said 50 died on one of these assignments, and 25 on the other. Some porters who could not keep up with the pace of the march were pushed off the hillsides. The soldiers frequently assaulted girls at night. Rape was commonplace over the last two years or so. The girls were rounded up and offered to the soldiers. He personally saw this happening. His own sister had been assaulted less than a month before. He was present. He resisted, but was beaten and forcibly taken to another room.

 


Ethnicity:

Rohingya

33

Age/sex:

35, male

Family situation:

Married with one daughter and two sons

Occupation:

Farmer with nine khani (3.4 acres) of paddy fields (this was an area where there is only one rice crop per year).

From:

Lamarpara, Rathedaung township, Rakhine State (very remote coastal village)

The witness left Myanmar at the beginning of January 1998 because he was no longer able to provide for his family. This was his first time in Bangladesh. The Government had seized half his land in 1996 and the rest in 1997, leaving him only one khani. The NaSaKa set up camp in his village in 1996/97. Before that period he had not been subjected to forced labour (very remote village). He worked on embankments for shrimp breeding ponds. He had to do this 15 days a month for seven months. Ninety to 150 people worked alongside him on this. He received two kilos of rice. He could not refuse. He knew men in his village who had been tortured because they had refused to do work. They were kept in a dark room. That episode had occurred about a year ago. He could not pay to be replaced or bribe the soldiers. He last did this work 12 days before he left. With regard to portering, he had to go with the army in April 1997. This was an operation against the RSO. The army deployed the porters in the front line in such a w