|
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)
|
|
|
Part IV (cont.)
Examination of the case by the Commission
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.
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:
- written and sometimes oral orders from higher administrative authorities or the military are received by the village head or by ward administration officials;
- these orders either specify the number of persons to be provided, or the amount of work to be completed by residents;
- the work may be for portering, military camp work, other work in support of the military, work on agricultural, logging and other production projects undertaken by the authorities, the construction and maintenance of roads, railways and bridges, other infrastructure work or other general urban work;
- it is for the village head or the ward administration officials to make the necessary arrangements by instructing a certain number of households to provide the labour required, rounding up people, sending them as a punishment for some minor offence or holding a "lottery" to choose which of the residents have to go.(828) In cases varying from this general pattern, persons are directly rounded up by troops, without recourse to the village head or ward administration officials.(829) Whatever the method used, the Commission's finding on the evidence is that, with the only exception of substitutes occasionally hired by households or individuals called up to contribute labour, those required to perform work or service have not offered themselves voluntarily for that work or service.
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.
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.
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.
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.
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
(i) Imposition of forced or compulsory
labour for private benefit
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)
(ii) Exaction of forced or compulsory labour from
women, children, elderly people and disabled
persons
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.