Governing Body

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

Part IV

Examination of the case by the Commission

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) Compulsory military service

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

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

(b) Normal civic obligations

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

(c) Prison labour

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

(d) Emergencies

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

(e) Minor communal service

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

• the services must be "minor services", i.e. relate primarily to maintenance work and, in exceptional cases, to the erection of certain buildings intended to improve the social conditions of the population of the community itself (a small school, a medical consultation and treatment room, etc.);
• 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 "members of the community" (i.e. the community which has to perform the services) or their "direct" representatives (e.g. the village council) must "have the right to be consulted in regard to the need for such services".⁽²⁴¹⁾

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

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

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

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

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

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

Since the Convention, adopted in 1930, calls for the suppression of forced labour within the shortest possible period, to invoke at the current time (67 years after its adoption) that certain forms of forced or compulsory labour comply with one of the requirements of this set of provisions, is to disregard the transitional function of these provisions and contradict the spirit of the Convention.

In the view of the Committee, use of a form of forced or compulsory labour falling within the scope of the Convention as defined in Article 2 may no longer be justified by invoking observance of the provisions of Article 1, paragraph 2, and Articles 4 to 24, although the absolute prohibitions contained in these provisions remain binding upon the States having ratified the Convention.⁽²⁵⁷⁾

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

10. Brief description of Myanmar

(1)  General presentation

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

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

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

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

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

(2)  Historical background

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

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

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

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

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

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

(3)  Administrative structure

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

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

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

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

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

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

(4)  Opposition forces

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

11. Legislation of Myanmar
relevant to the case

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

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

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

Every headman shall be bound to perform the following public duties, namely:

(g) to collect and furnish, upon receipt of payment for the same at such rates as the Deputy Commissioner may fix, guides, messengers, porters, supplies of food, carriage and means of transport for any troops or police posted in or near or marching through the village-tract or for any servant of the Government travelling on duty: provided that no headman shall requisition for personal service any resident of such village-tract who is not of the labouring class and accustomed to do such work as may be required;

(n) generally to assist all officers of the Government in the execution of their public duties; and

(o) generally to adopt such measures and do such acts as the exigency of the village may require.

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

239. Under Section 11 of the Village Act:

Every person residing in the village-tract shall be bound to perform the following public duties, namely:

[...]

(d) on the requisition of the headman or of a rural policeman, to assist him in the execution of his duties prescribed in sections 7 and 8 of the Act and the rules made under the Act.

Explanation: A requisition under clause (d) may be either general or addressed to an individual.

Under section 12 of the same Act:

If any person residing in a village-tract refuses or neglects to perform public duties imposed upon him by this Act or by any rule thereunder, he shall, in the absence of reasonable excuse, the burden of proving which shall lie upon him, be liable:

(i) by order of the headman, to fine ...; or

(ii) by order of the village committee, on the case being referred to it by the headman, to fine ..., or to confinement for a term not exceeding 48 hours in such place as the Deputy Commissioner may appoint in this behalf, or to both; or

(iii) on conviction by a Magistrate, to fine ..., or to imprisonment for a term not exceeding one month, or to both.

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

Persons residing in a ward shall be bound to perform the following public duties, namely:

[...]

(b) on a general or individual requisition of the headman to assist him in the execution of his public duties.

Section 9A of the same Act provides that:

If any person residing in a ward refuses/neglects to perform any of the public duties imposed upon him by this Act or any rule thereunder, he shall, in the absence of reasonable excuse, the burden of proving which shall lie upon him, be liable, on conviction by a magistrate, to a fine ...

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

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

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

... is widely worded and must be worked with discretion. The clause does not cover requisitions for coolies to carry out forest and other departmental work. Services obtained under clause (n) legitimately for what are in fact private purposes, e.g. repairing the roof of a zayat or clearing a camping ground or carrying a letter (except from village to village in accordance with the custom of the country), should be paid for.⁽²⁸⁶⁾

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

Deputy Commissioners should bear in mind that the wide powers conferred upon them and upon Township Officers and headmen by the Village Act should be exercised with judgment and consideration; and that the people of Burma, and especially of Upper Burma, are apt to submit without much complaint to annoyances and extortions which are in reality very burdensome. They should remember that it is their duty to protect the people from such treatment, and to see that subordinate officials are kept in check and are not allowed to abuse their position and power to the harassment and annoyance of the residents in the tracts committed to their charge.

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

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

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

1. It has been learnt that some of the local people are very concerned over the assignment of each and every family in the task of digging a certain number of pits for making ditches and trenches in the overall construction of dams in Yangon Division.

2. It is hereby instructed to hire paid labourers to carry out these projects and to stop the practice of obtaining labour from the local people without monetary compensation.

3. In so doing, the Ministry of Agriculture is to bear the resulting expenditure.

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

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

In cases where labour is compulsorily requisitioned under the provisions of section 11(d) read with section 8(1)(g) of the Village Act, the Government accepts the liability to pay compensation for personal injury by accident or sickness arising out of and in the course of the labourers' employment. The conditions of the grant of compensation will be similar to those contained in the Workmen's Compensation Act ...⁽²⁹³⁾

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

(2)  Restrictions on the freedom
of movement and citizenship

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

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

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

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

(i) Every person, both of whose parents belong or belonged to any of the indigenous races of Burma;

(ii) Every person born in any of the territories included within the Union, at least one of whose grandparents belong or belonged to any of the indigenous races of Burma;

(iii) Every person born in any of the territories included within the Union, of parents both of whom are, or if they had been alive at the commencement of this Constitution would have been, citizens of the Union;

(iv) Every person who was born in any of the territories which at the time of his birth was included within His Britannic Majesty's dominions and who has resided in any of the territories included within the Union for a period of not less than eight years in the 10 years immediately preceding the date of the commencement of this Constitution or immediately preceding January 1942 and who intends to reside permanently therein and who signifies his election of citizenship of the Union in the manner and within the time prescribed by law, shall be a citizen of the Union.⁽²⁹⁸⁾

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

Nothing contained in section 11 shall derogate from the power of the Parliament to make such laws as it thinks fit in respect of citizenship and alienage and any such law may provide for the admission of new classes of citizens or for the termination of the citizenship of any existing classes.⁽²⁹⁹⁾

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

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

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

(3)  Compulsory military service
and forced conscription

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

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

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

(4)  Sanctions for illegally imposing forced
or compulsory labour

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

Whoever unlawfully compels any person to labour against the will of that person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B. General pattern of conduct by
Myanmar authorities

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Part IV (cont.)

---

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

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

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

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

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

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

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

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

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

197. Art. 1(1).

198. Arts. 2 and 6.

199. Art. 5.

200. Art. 5(3).

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

202. Art. 25 of Convention No. 29.

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

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

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

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

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

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

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

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

1. An act of a State which constitutes a breach of an international obligation is an internationally wrongful act, regardless of the subject-matter of the obligation breached.

2. An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community as a whole constitutes an international crime.

3. Subject to paragraph 2, and on the basis of the rules of international law in force, an international crime may result, inter alia, from:

[...]

(c) a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid;

[...]

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

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

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

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

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

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

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

218. Art. 25 of the Convention.

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

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

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

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

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

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

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

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

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

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

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

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

231. See para. 208 above.

232. See para. 212 below.

233. See para. 213 below.

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

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

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

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

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

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

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

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

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

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

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

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

246. Arts. 7 and 8.

247. Arts. 9 and 10.

248. Arts. 9 to 12.

249. Arts. 13 to 17.

250. Arts. 18 and 19.

251. Arts. 4 and 6.

252. Art. 11.

253. Art. 19.

254. Art. 21.

255. Arts. 7 and 8.

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

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

258. See paras. 198 to 204 above.

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

260. Sometimes also referred to as "quarters".

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

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

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

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

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

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

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

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

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

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

271. ibid.

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

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

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

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

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

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

278. See paras. 121 to 123 above.

279. See para. 145 above.

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

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

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

283. See para. 237 above.

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

285. Doc. H10 at p. 5858.

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

287. Doc. H10 at p. 5871.

288. ibid., at p. 5869.

289. See para. 242 above.

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

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

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

293. Doc. H10 at p. 5870.

294. e.g. para. 112 above.

295. See paras. 237 et seq. above.

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

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

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

299. ibid.

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

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

302. Human Rights Watch/Asia, ibid.

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

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

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

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

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

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

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

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

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

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

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

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

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

316. See paras. 300-350 below.

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

318. See paras. 374-388 below.

319. See paras. 389-393 below.

320. See paras. 394-407 below.

321. See paras. 408-443 below.

322. See paras. 444-457 below.

323. See paras. 458-461 below.

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

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

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

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

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

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

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

331. See order 2 in Appendix XI.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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