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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)
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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
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".
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.
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.
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:
... the political, social, and economic and administrative structure in the Union of Myanmar has changed drastically since 18 September 1988. Myanmar is now on her way to multiparty democratic system in place of one party political structure. Consequently, the socialist economic system has recently been substituted by new open-door economic policy along with other changes in social and administrative pattern.
The present Government has been endeavouring for the betterment of the quality of life of its people including the workers from every sector of the economy. The existing labour laws are once again under review to be in consonant with the changing situations. The Government has reconstituted the Labour Laws Reviewing Committee in July, 1989. In doing so, every salient point raised by the Committee of Experts shall be taken into serious consideration in the process of reviewing the existing labour laws.
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:
With reference to the comments made by the International Confederation of Free Trade Unions (ICFTU) concerning the practice of compulsory portering, the Government wishes to indicate that it is true that armed forces have to employ porters for transportation of equipment and things over difficult terrain in remote jungles and mountains near the frontiers where military campaigns against the armed insurgents are launched. Where the terrain is inaccessible by car or other motorised vehicles, the Myanmar army has to employ porters for transport of supplies and equipment. However, it is not true that porters are treated harshly and inhumanely by the Myanmar armed forces. All these allegations about the treatment of porters by the armed forces are untrue. They mainly emanate from outside sources with ulterior political motives.
As a matter of fact, there are volunteer porters and professional porters who offer to work as porters on behalf of others to earn their living. Porters are recruited and employed by the armed forces after consultation with local authorities. This has been in practice in Myanmar since she regained her independence in 1948. Recruitment and employment are in accordance with section 8, subsection 1(n), of the Village Act of 1908 and section 7, subsection 1(m), of the Towns Act of 1907. Recruitment is based on the following three criteria:
(a) they must be unemployed;
(b) they must be physically fit to work as porters;
(c) a reasonable amount of wages must be fixed and agreed to beforehand.
Porters thus recruited are never required to accompany the troops to the actual scene of battles; neither are they exposed to danger. They are sent back as soon as their assignment is completed. They are paid equitably and in the unlikely event of a loss of life or limb unconnected with any armed conflict they or their families are compensated in accordance with the Workmen's Compensation Act of 1925. They are entitled to medical treatment like soldiers in accordance with the Armed Forces Act. They are placed in safe places during operations.
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:
- The use of voluntary labour, alleged compulsory or forced labour, was 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. According to these provisions only the local highest civil authorities are vested with power for necessary recruitment of any form of voluntary labour. Such recruitment was done only for the betterment of the community itself under the supervision of the local authorities concerned. Therefore, it was not practical at all to remove workers from their place of habitual residence.
- Myanmar's practices of voluntary labour (alleged forced labour) satisfied the conditions mentioned in Article 9.
- There was not "forced or compulsory labour" exacted as tax. Moreover, the allegations made did not apply in any case relating to the provisions of Article 10.
- As for Article 11, only able-bodied adults were permitted to contribute voluntary labour in community development programmes. There was no forced labour of any form in the country. Even in the case of porters, recruitment was done only for urgent unexpected requirements. But in any way the recruitment was absolutely voluntary. Porters therefore were not conscripted. Instead they offered their services on their own accord for want of subsistence. Furthermore, they were provided with enough food and medical care during their service, and they all were covered by the Workmen's Compensation Act of 1923.
- The aforesaid voluntary labour contribution never exceeded 60 days. If the work was not completed within this period, others who offered their service voluntarily were given their turn. Porters who served more than once were accepted strictly on a voluntary basis.
- In community development projects and public works, labour contributors were remunerated on a piece-rate basis so that rest during working time was at their own disposal.
- Voluntary labour contributors and porters were remunerated. They were being paid at prevailing Government wage-rates.
- The existing Workmen's Compensation Act of 1923 and other relevant rules and regulations were applicable both to voluntary labour and porters.
- According to the existing practices Article 16 was not applicable.
- Forced or compulsory labour for the transport of persons or goods, such as the labour of porters or boatmen, was not applicable since they never existed and therefore allegations made under Article 18 were not valid.
- As regards Articles 23, 24 and 25, instruments regulating the use of any form of voluntary labour (alleged forced or compulsory labour) and the relevant measures to guarantee compensation in case of accident and death were in force. These voluntary labour contributors were treated on an equal footing with other workers under respective laws and regulations.
(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.
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)
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.