COMPLAINANT
1. Mr. E. About-Risk, Workers' delegate, Lebanon 2. Mr. C. Agyei, Workers' delegate, Ghana 3. Mr. K. Ahmed, Workers' delegate, Pakistan 4. Mr. M. Blondel, Workers' delegate, France 5. Mr. W. Brett, Workers' delegate, United Kingdom 6. Mr. U. Edström, Workers' delegate, Sweden 7. Ms. U. Engelen-Kefer, Workers' delegate, Germany 8. Mr. R. Falbr, Workers' delegate, Czech Republic 9. Mr. C. Gray, Workers' delegate, United States 10. Mr. S. Itoh, Workers' delegate, Japan 11. Mr. Y. Kara, Workers' delegate, Israel 12. Mr. A. Lettieri, Workers' delegate, Italy 13. Mr. I. Mayaki, Workers' delegate, Niger 14. Mr. S. Mookherjee, Workers' delegate, India 15. Mr. B.P. Mpangala, Workers' delegate, United Republic of Tanzania 16. Mr. J.-C. Parrot, Workers' delegate, Canada 17. Ms. P. O'Donovan, Workers' delegate, Ireland 18. Mr. F. Ramirez Leon, Workers' delegate, Venezuela 19. Mr. Z. Rampak, Workers' delegate, Malaysia 20. Mr. I. Sahbani, Workers' delegate, Tunisia 21. Mr. A. Sanchez Madariaga, Workers' delegate, Mexico 22. Mr. G. Sibanda, Workers' delegate, Zimbabwe 23. Mr. L. Sombes, Workers' delegate, Cameroon 24. Mr. L. Trotman, Workers' delegate, Barbados 25. Mr. T. Wojcik, Workers' delegate, Poland

1. Filing of the complaint and appointment of the Commission

(1) Filing of the complaint

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

Myanmar's gross violations of the Convention (No. 29) have been criticized by the ILO's supervisory bodies for 30 years. In 1995, and again in 1996, they have been the subject of special paragraphs in the reports of the Committee on the Application of Conventions and Recommendations, and this year, the Government has also been singled out by the Committee for its "continued failure to implement" the Convention.

In addition, in November 1994, the Governing Body adopted the report of the Committee it had established to examine the representation made by the International Confederation of Free Trade Unions (ICFTU) against the Government of Myanmar for its failure to ensure effective observance of Convention No. 29.

The Government has demonstrated its unwillingness to act upon the repeated calls addressed to it by the ILO's supervisory bodies to abolish and cancel legislation which allows for the use of forced labour and to ensure that forced labour is eliminated in practice. In these circumstances, the Committee on Applications has again expressed deep concern at the systematic recourse to forced labour in Myanmar.

Despite its protestations that the powers available under the offending legislation, the Village Act (1908) and the Towns Act (1907), have fallen into disuse since 1967 and that these laws are currently under review with a view to their repeal, the Government has failed conspicuously to provide the information requested of it concerning concrete action for legislative change.

Indeed, it is clear that the practice of forced labour is becoming more widespread and that the authorities in Myanmar are directly responsible for its increasing use, and actively involved in its exploitation.

The ICFTU representation presented under article 24 of the Constitution in January 1993 addressed the particular case of the forced recruitment and abuse of porters by the military which was, at that time, the primary cause of concern.

Since then, however, forced labour is being used systematically, on an ever larger scale, and in an increasing number of areas of activity. Large numbers of forced labourers are now working on railway, road, construction, and other infrastructure projects, many of which are related to the Government's efforts to promote tourism in Myanmar. In addition the military is engaged in the confiscation of land from villagers who are then forced to cultivate it to the benefit of the military appropriators.

The current situation is that the Government of Myanmar, far from acting to end the practice of forced labour, is engaged actively in its promotion, so that it is today an endemic abuse affecting hundreds of thousands of workers who are subjected to the most extreme forms of exploitation, which all too frequently leads to loss of life.

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

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

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

Article 26

1. Any of the Members shall have the right to file a complaint with the International Labour Office if it is not satisfied that any other Member is securing the effective observance of any Convention which both have ratified in accordance with the foregoing articles.

2. The Governing Body may, if it thinks fit, before referring such a complaint to a Commission of Inquiry, as hereinafter provided for, communicate with the government in question in the manner described in article 24.

3. If the Governing Body does not think it necessary to communicate the complaint to the government in question, or if, when it has made such communication, no statement in reply has been received within a reasonable time which the Governing Body considers to be satisfactory, the Governing Body may appoint a Commission of Inquiry to consider the complaint and to report thereon.

4. The Governing Body may adopt the same procedure either of its own motion or on receipt of a complaint from a delegate to the Conference.

5. When any matter arising out of article 25 or 26 is being considered by the Governing Body, the government in question shall, if not already represented thereon, be entitled to send a representative to take part in the proceedings of the Governing Body while the matter is under consideration. Adequate notice of the date on which the matter will be considered shall be given to the government in question.

Article 27

The Members agree that, in the event of the reference of a complaint to a Commission of Inquiry under article 26, they will each, whether directly concerned in the complaint or not, place at the disposal of the Commission all the information in their possession which bears upon the subject-matter of the complaint.

Article 28

When the Commission of Inquiry has fully considered the complaint, it shall prepare a report embodying its findings on all questions of fact relevant to determining the issue between the parties and containing such recommendations as it may think proper as to the steps which should be taken to meet the complaint and the time within which they should be taken.

Article 29

1. The Director-General of the International Labour Office shall communicate the report of the Commission of Inquiry to the Governing Body and to each of the governments concerned in the complaint, and shall cause it to be published.

2. Each of these governments shall within three months inform the Director-General of the International Labour Office whether or not it accepts the recommendations contained in the report of the Commission; and if not, whether it proposes to refer the complaint to the International Court of Justice.

Article 31

The decision of the International Court of Justice in regard to a complaint or matter which has been referred to it in pursuance of article 29 shall be final.

Article 32

The International Court of Justice may affirm, vary or reverse any of the findings or recommendations of the Commission of Inquiry, if any.

Article 33

In the event of any Member failing to carry out within the time specified the recommendations, if any, contained in the report of the Commission of Inquiry, or in the decision of the International Court of Justice, as the case may be, the Governing Body may recommend to the Conference such action as it may deem wise and expedient to secure compliance therewith.

Article 34

The defaulting government may at any time inform the Governing Body that it has taken the steps necessary to comply with the recommendations of the Commission of Inquiry or with those in the decision of the International Court of Justice, as the case may be, and may request it to constitute a Commission of Inquiry to verify its contention. In this case the provisions of articles 27, 28, 29, 31 and 32 shall apply, and if the report of the Commission of Inquiry or the decision of the International Court of Justice is in favour of the defaulting government, the Governing Body shall forthwith recommend the discontinuance of any action taken in pursuance of article 33.

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

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

No discussion on the merits of the complaint is admissible at the present stage. It would indeed be inconsistent with the judicial nature of the procedure provided for in article 26 and the following articles of the Constitution that there should be any discussion in the Governing Body on the merits of a complaint until the Governing Body has before it the contentions of the government against which the complaint is filed, together with an objective evaluation of these contentions by an impartial body. Nor would such discussion be appropriate while a proposal to refer the complaint to a Commission of Inquiry is pending before the Governing Body or while the complaint is sub judice before a Commission of Inquiry. If there is to be a Commission of Inquiry -- which it is for the Governing Body to decide under article 26, paragraph 4, of the Constitution -- it is when the Commission of Inquiry has reported on the merits of the complaint that the Governing Body may be called upon to take action in the matter.

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

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

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

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

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

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

Contradictions exist between the facts presented in the allegations and those set out in the observations of the Government of Myanmar. It would, however, not be appropriate to enter into a discussion of the substance if it is envisaged to set up a Commission of Inquiry under article 26, paragraph 4, of the Constitution in order to make an objective assessment of the situation. As was pointed out in the report of the Officers of the Governing Body at the latter's 267th Session, it would be incompatible with the judicial nature of the procedure thus instituted to open up such a discussion before the Commission of Inquiry submits its conclusions.

In light of the foregoing, the Governing Body decided that the whole matter should be referred, without further discussion, to a Commission of Inquiry set up in accordance with article 26 of the Constitution. The Governing Body recalled that the members of the Commission would be nominated in accordance with the same criteria, and would serve in the same conditions, as the members of commissions previously appointed under article 26 of the Constitution. They would serve as individuals in their personal capacity, would be chosen for their impartiality, integrity and standing. They would undertake by solemn declaration, similar to that made by judges of the International Court of Justice, to carry out their tasks and exercise their powers as members of the Commission "honourably, faithfully, impartially and conscientiously". The Governing Body added that the Commission was to establish its own procedure in accordance with the provisions of the Constitution.

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

Chairperson:

Members:

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

Part II

Procedure followed by the Commission

2. First Session of the Commission

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

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

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

I solemnly declare that I will honourably, faithfully, impartially and conscientiously perform my duties and exercise my powers as a member of the Commission of Inquiry appointed by the Governing Body of the International Labour Office at its 268th Session (March 1997) under article 26 of the Constitution of the International Labour Organization to examine the observance of the Forced Labour Convention, 1930 (No. 29), by Myanmar.

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

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

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

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

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

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

(3) Communication of additional information

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

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

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

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

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

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

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

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

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

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

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

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

3. Communications received by the Commission following its First Session

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

(1) Communications received from the parties

(a) Communications from the complainants

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

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

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

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

(b) Communications from the Government of Myanmar

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

(2) Communications received from other sources

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

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

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

(b) Communications from intergovernmental organizations

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

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

(c) Communications from non-governmental organizations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(d) Communications from companies mentioned in the complaint

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

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

4. Second Session of the Commission

(1) Hearing of witnesses

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) Communication from the Government of Myanmar

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

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

(b) Communications from non-governmental organizations

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

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

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

(c) Communications from a company named in the complaint

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

-- it was wrong to claim that the preparatory clearing work could have been undertaken by forced labourers for the purpose of facilitating the access of the project teams. During the years 1993 and 1994, clearing work had been carried out under the supervision of TOTAL by the Compagnie générale de géophysique (CGG);

-- TOTAL had no knowledge of work to level the ground in Phaungdaw, either in 1994 or since, with the exception of the work related to the right of way of the pipeline, which had been carried out under the supervision of the company;

-- the security of the facilities and the staff working on the pipeline was the responsibility of the national authorities of Myanmar and the organization of the public forces in that region was absolutely not the responsibility of TOTAL;

-- with regard to the Heinze islands, none of the persons working for TOTAL had set foot on the islands nor flown over them: there was no relation between these islands and the pipeline laid by TOTAL;

-- TOTAL had not been associated in any way or form, even indirectly, with civil works or a military base that the army was alleged to have constructed at Kadaik (situated in the estuary of the Heinze river);

-- it was wrong to claim that TOTAL had entrusted any work at all to the army or the national company MOGE, either in February 1996 or before or after that date;

-- TOTAL had never paid money to the army of Myanmar or to any of its units;

-- TOTAL could make a categorical assurance that the army had never carried out clearing work at the eastern end of the pipeline route;

-- most of the helipads situated on the pipeline route had been constructed by TOTAL or by companies working for TOTAL and applying its code of conduct, although TOTAL did not know under what conditions other helipads in the region had been constructed;

-- contrary to what had been indicated to the Commission, there was no specific pipeline road network in the western part of the area in which it had been constructed. In 1995-96, for the needs of the project, improvements had been made to the existing road network in this coastal area and had been carried out by the public works company BEC-Frères (based in Montpellier), working under the supervision of TOTAL and respecting its code of conduct. This work involved the use of modern civil works machinery and not in any event recourse to forced labourers;

-- although it had not always been the case, no one now contested the fact that TOTAL and its contractors paid all the persons working in the framework of the Yadana project;

-- to state that the use of the railway had been seriously envisaged for the needs of the project and then abandoned due to allegations of forced labour was quite simply absurd. In this regard, TOTAL stated that:

-- -- the wharf through which materials were brought to the region formed part of the project from the beginning;

-- -- a train (particularly with the technical specifications of the future Ye-Tavoy railway) would not in any case have been able to transport the sections of the pipeline, which were 12 metres long and weighed nearly 5 tonnes each, or the more than 700 pieces of machinery and public works equipment, some of which were of gigantic proportions, used for the project;

-- -- that the mere chronology of the facts spoke for itself since, unlike the pipeline, the train was far from being operational and had still not reached the pipeline zone; and

-- finally, a pipeline was laid on a soft bedding and did not therefore need stones to be crushed.

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

5. Visit by the Commission to the region

(1) Procedure followed by the Commission

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

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

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

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

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

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

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

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

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

(2) Persons and witnesses interviewed

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

(a) India

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

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

(b) Bangladesh

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

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

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

(c) Thailand

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

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

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

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

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

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

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

6. Third Session of the Commission

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

Part III

Allegations by the parties and historical background of the case

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

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

(1) Factual allegations submitted by the complainants

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

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

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

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

(2) Legal conclusions submitted by the complainants

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

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

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

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

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

(3) The Government's observations (Endnote 80)

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

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

(a) Public purposes or public sector

(i) Portering

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

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

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

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

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

(iii) Hotel industries in Myanmar

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

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

(b) Private benefit or private sector

(i) Construction of the Yadana natural gas pipeline

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

(c) The law

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

(d) Conclusion

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

8. Historical background

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

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

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

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

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

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

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

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

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

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

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

... the political, social, and economic and administrative structure in the Union of Myanmar has changed drastically since 18 September 1988. Myanmar is now on her way to multiparty democratic system in place of one party political structure. Consequently, the socialist economic system has recently been substituted by new open-door economic policy along with other changes in social and administrative pattern.

The present Government has been endeavouring for the betterment of the quality of life of its people including the workers from every sector of the economy. The existing labour laws are once again under review to be in consonant with the changing situations. The Government has reconstituted the Labour Laws Reviewing Committee in July, 1989. In doing so, every salient point raised by the Committee of Experts shall be taken into serious consideration in the process of reviewing the existing labour laws.

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

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

With reference to the comments made by the International Confederation of Free Trade Unions (ICFTU) concerning the practice of compulsory portering, the Government wishes to indicate that it is true that armed forces have to employ porters for transportation of equipment and things over difficult terrain in remote jungles and mountains near the frontiers where military campaigns against the armed insurgents are launched. Where the terrain is inaccessible by car or other motorised vehicles, the Myanmar army has to employ porters for transport of supplies and equipment. However, it is not true that porters are treated harshly and inhumanely by the Myanmar armed forces. All these allegations about the treatment of porters by the armed forces are untrue. They mainly emanate from outside sources with ulterior political motives.

As a matter of fact, there are volunteer porters and professional porters who offer to work as porters on behalf of others to earn their living. Porters are recruited and employed by the armed forces after consultation with local authorities. This has been in practice in Myanmar since she regained her independence in 1948. Recruitment and employment are in accordance with section 8, subsection 1(n), of the Village Act of 1908 and section 7, subsection 1(m), of the Towns Act of 1907. Recruitment is based on the following three criteria:

(a) they must be unemployed;

(b) they must be physically fit to work as porters;

(c) a reasonable amount of wages must be fixed and agreed to beforehand.

Porters thus recruited are never required to accompany the troops to the actual scene of battles; neither are they exposed to danger. They are sent back as soon as their assignment is completed. They are paid equitably and in the unlikely event of a loss of life or limb unconnected with any armed conflict they or their families are compensated in accordance with the Workmen's Compensation Act of 1925. They are entitled to medical treatment like soldiers in accordance with the Armed Forces Act. They are placed in safe places during operations.

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

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

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

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

(a) Allegations made by the complainant organization

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

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

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

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

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

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

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

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

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

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

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

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

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

-- The use of voluntary labour, alleged compulsory or forced labour, was made only for the urgent necessity in accordance with the following provisions: (a) section 8(1)(g)(n) and (o) of the Village Act (1908); (b) section 9(b) of the Towns Act. According to these provisions only the local highest civil authorities are vested with power for necessary recruitment of any form of voluntary labour. Such recruitment was done only for the betterment of the community itself under the supervision of the local authorities concerned. Therefore, it was not practical at all to remove workers from their place of habitual residence.

-- Myanmar's practices of voluntary labour (alleged forced labour) satisfied the conditions mentioned in Article 9.

-- There was not "forced or compulsory labour" exacted as tax. Moreover, the allegations made did not apply in any case relating to the provisions of Article 10.

-- As for Article 11, only able-bodied adults were permitted to contribute voluntary labour in community development programmes. There was no forced labour of any form in the country. Even in the case of porters, recruitment was done only for urgent unexpected requirements. But in any way the recruitment was absolutely voluntary. Porters therefore were not conscripted. Instead they offered their services on their own accord for want of subsistence. Furthermore, they were provided with enough food and medical care during their service, and they all were covered by the Workmen's Compensation Act of 1923.

-- The aforesaid voluntary labour contribution never exceeded 60 days. If the work was not completed within this period, others who offered their service voluntarily were given their turn. Porters who served more than once were accepted strictly on a voluntary basis.

-- In community development projects and public works, labour contributors were remunerated on a piece-rate basis so that rest during working time was at their own disposal.

-- Voluntary labour contributors and porters were remunerated. They were being paid at prevailing Government wage-rates.

-- The existing Workmen's Compensation Act of 1923 and other relevant rules and regulations were applicable both to voluntary labour and porters.

-- According to the existing practices Article 16 was not applicable.

-- Forced or compulsory labour for the transport of persons or goods, such as the labour of porters or boatmen, was not applicable since they never existed and therefore allegations made under Article 18 were not valid.

-- As regards Articles 23, 24 and 25, instruments regulating the use of any form of voluntary labour (alleged forced or compulsory labour) and the relevant measures to guarantee compensation in case of accident and death were in force. These voluntary labour contributors were treated on an equal footing with other workers under respective laws and regulations.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(1) General Assembly

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(3) Secretary-General

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

(4) Other United Nations bodies

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

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

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

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

Part IV

Examination of the case by the Commission

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

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

198. In international law, the prohibition of recourse to forced labour has its origin in the efforts made by the international community to eradicate slavery, its institutions and similar practices, since forced labour is considered to be one of these slavery-like practices. (Endnote 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. (Endnote 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. (Endnote 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, (Endnote 191) the General Act of the Berlin Conference of 26 February 1885 prohibiting the slave trade in the Congo Basin, (Endnote 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, (Endnote 193) the 1904 International Agreement as well as the 1910 International Convention for the Suppression of the White Slave Traffic (Endnote 194) and the 1921 International Convention for the Suppression of Traffic in Women and Children. (Endnote 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, (Endnote 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". (Endnote 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. (Endnote 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". (Endnote 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. (Endnote 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. (Endnote 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". (Endnote 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; (Endnote 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. (Endnote 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. (Endnote 205)

202. Since 1945, many States have prohibited forced labour at the constitutional level. (Endnote 206) Moreover, several international human rights instruments explicitly prohibit this form of denigration of the individual. (Endnote 207) These instruments do not define forced labour; reference should therefore be made to the relevant Conventions and resolutions of the ILO. (Endnote 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. (Endnote 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. (Endnote 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. (Endnote 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" (Endnote 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, (Endnote 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 (Endnote 214) and 1996 (Endnote 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". (Endnote 216) This obligation to suppress the use of forced or compulsory labour, as defined in the Convention, (Endnote 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". (Endnote 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". (Endnote 219) As noted by the Committee of Experts on the Application of Conventions and Recommendations, (Endnote 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. (Endnote 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. (Endnote 222)

207. The Convention provides specifically for the exemption of certain forms of compulsory service (Endnote 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". (Endnote 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, (Endnote 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. (Endnote 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. (Endnote 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. (Endnote 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. (Endnote 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". (Endnote 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, (Endnote 231) work or service required in cases of emergency, (Endnote 232) and minor communal services. (Endnote 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. (Endnote 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". (Endnote 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. (Endnote 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". (Endnote 237) The Committee of Experts has pointed out that the concept of emergency -- as indicated by the enumeration of examples in the Convention (Endnote 238) -- involves a sudden, unforeseen happening calling for instant counter-measures. 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. (Endnote 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". (Endnote 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". (Endnote 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 (Endnote 242) within the shortest possible period", (Endnote 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". (Endnote 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. (Endnote 245) These conditions and guarantees aim at limiting the power to exact the work or service in question to specified authorities, (Endnote 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, (Endnote 247) to safeguard the social and physical conditions of the population, (Endnote 248) and to ensure the observance of certain minimum standards as regards hours of work, weekly rest, remuneration, workmen's compensation, health and welfare. (Endnote 249) Special conditions are laid down with regard to compulsory porterage and compulsory cultivation. (Endnote 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, (Endnote 251) forced or compulsory labour exacted from women, from men under 18 years or over 45 years, or from disabled persons, (Endnote 252) compulsory cultivation otherwise than as a precaution against famine or deficiency of food supplies, (Endnote 253) forced or compulsory labour for work underground in mines, (Endnote 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. (Endnote 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. (Endnote 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. (Endnote 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. (Endnote 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. (Endnote 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 (Endnote 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, (Endnote 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. (Endnote 262) Accurate population figures for these groups are not available, since no detailed census has been attempted since 1931 and current estimates vary considerably. (Endnote 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. (Endnote 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. (Endnote 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. (Endnote 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. (Endnote 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). (Endnote 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 (Endnote 269) to 429,000 by mid-1997. (Endnote 270) The army accounts for the majority of these personnel, with a reported strength of some 400,000. (Endnote 271)

232. The Myanmar army is divided into 12 Regional Commands, which together control 145 infantry battalions (the KaLaYa, or IBs); (Endnote 272) and ten mobile Light Infantry Divisions, which together control another 100 infantry battalions (the KaMaYa, or LIBs). (Endnote 273) There is also a small number of specialized battalions, and a number of Military Intelligence (MI) units. (Endnote 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). (Endnote 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. (Endnote 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. (Endnote 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, (Endnote 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". (Endnote 279)

238. The relevant provisions of section 8(1) of the Village Act (1908) were submitted by the Government (Endnote 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 (Endnote 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). (Endnote 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 (Endnote 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, (Endnote 284) was specifically deleted by Burma Act IV of 1924. (Endnote 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. (Endnote 286)

According to paragraph 78 of the same Executive Orders: (Endnote 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 (Endnote 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) (Endnote 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". (Endnote 290) While marked "secret", this Order has according to the Government (Endnote 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. (Endnote 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 ... (Endnote 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. (Endnote 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, (Endnote 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, (Endnote 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. (Endnote 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. (Endnote 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. (Endnote 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". (Endnote 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. (Endnote 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. (Endnote 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. (Endnote 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, (Endnote 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. (Endnote 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. (Endnote 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. (Endnote 307)

(4) Sanctions for illegally imposing forced or compulsory labour

258. Under section 374 of the Penal Code: (Endnote 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 (Endnote 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, (Endnote 310) as well as by witnesses and other persons during the hearings (Endnote 311) or the visit of the Commission to the region. (Endnote 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. (Endnote 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. (Endnote 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". (Endnote 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 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. (Endnote 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). (Endnote 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. (Endnote 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. (Endnote 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. (Endnote 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. (Endnote 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. (Endnote 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. (Endnote 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. (Endnote 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. (Endnote 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. (Endnote 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). (Endnote 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. (Endnote 328) The Commission received copies of a large number of these orders (mostly from local army camp, battalion, village-tract and township levels). (Endnote 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". (Endnote 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". (Endnote 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. (Endnote 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. (Endnote 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. (Endnote 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. (Endnote 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. (Endnote 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. (Endnote 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. (Endnote 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. (Endnote 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.); (Endnote 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. (Endnote 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. (Endnote 342) In addition, non-Burman populations appeared to be particularly targeted for forced labour, particularly in rural areas (see also paragraph 283 above). (Endnote 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. (Endnote 344) Treatment of this population also appeared to be especially harsh. (Endnote 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. (Endnote 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. (Endnote 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. (Endnote 348)

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

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

(1) Portering

(a) Documentary material

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

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

302. The methods used to procure porters varied. For major operations where large numbers of porters were required, various procurement methods were used. Orders to provide porters emanated from the highest levels of the military command structure. (Endnote 353) Depending on the number of porters required, the quota might be spread over a number of districts, or even over a number of States and Divisions. (Endnote 354) The order would be transmitted down the administrative command structure, so that a given township would be required to send a certain number of porters to a certain gathering point on a certain date. In order to fill this quota, orders were sent to each ward and village to provide a particular number of people. In cases where it was difficult to fill the quota in this way, the authorities resorted to rounding up civilians in urban areas, at such places as cinemas, video halls, tea-shops, stations, from buses or trains, or at any other place where there were large gatherings of people, such as at markets, religious festivals, weddings or funerals. (Endnote 355) In rural areas, troops went into villages and rounded up everyone they could catch. In the absence of a sufficient number of able-bodied men, the authorities would take women, children, the elderly, and persons otherwise unfit for work. (Endnote 356) The only way to avoid being taken was to pay a substantial sum of money (of the order of several thousand kyat (Endnote 357)) to the authorities to be exempted from this work. Having released those people who paid such a sum, the authorities would have to round up more people to replace them. It appeared that often the authorities would round up many more people than required, knowing that some would pay money to be released; the amount of money to be paid would depend on the number of "spare" people they had rounded up. (Endnote 358)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) Oral testimony

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

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

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

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

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

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

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

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

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

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

344. The porters have to transport ammunition, equipment and food, making up, in the case of the men, a load weighing over 25 kilos. (Endnote 439) According to the evidence heard, portering may take various forms. The porters may have to accompany the military when they move from one camp to another, on regular patrols or during military operations. It appears that witnesses were forced to perform all of these forms of portering in eastern Myanmar, especially in Shan, Mon, Kayah and Kayin States. Witnesses heard from northern Rakhine State had mostly to transport ammunition, equipment and rations for the military from one village or camp to another or on patrols. (Endnote 440) The evidence suggests that in this part of Myanmar territory offensive military operations are significantly fewer in number than in the eastern region of the country, where confrontations were numerous in recent years against Karen, Karenni, Mon (Endnote 441) and Shan opposition groups. (Endnote 442) In addition to the portering required for specific troop movements, witnesses have stated that they had to remain on hand with other villagers during a given period to cater for the needs of the military units whose camps were located near their village. (Endnote 443)

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

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

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

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

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

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

(2) Military camp work

(a) Documentary material

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) Oral testimony

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

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

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

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

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

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

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

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

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

(3) Other work in support of the military

(a) Documentary material

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

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

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

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

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

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

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

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

(b) Oral testimony

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

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

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

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

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

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

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

(4) Forced recruitment

(a) Documentary material

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

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

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

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

(b) Oral testimony

393. Eight witnesses who deserted the Tatmadaw between the early 1980s and 1966 gave testimony before the Commission. (Endnote 577) None of them gave specific evidence on the way they were recruited, save for one who specified that when joining the army he had to sign for at least ten years. (Endnote 578) If found, deserters are usually put in jail or, if they deserted with arms, executed. (Endnote 579) The Commission is not in possession of oral evidence which would confirm the documentary material submitted to it with regard to the conditions of recruitment into the Tatmadaw and various militia groups.

(5) Work on agriculture, logging, and other production projects

(a) Information provided to the Commission

394. Nature and conditions of work. Information provided to the Commission indicated that villagers, and to a lesser extent urban residents, were forced to work on a variety of projects undertaken by the authorities, in particular the military. These projects included cultivation of rice, other food crops, cash crops such as rubber, shrimp farms, kilns for producing bricks, and logging activities. The produce might be used by the military, but in many cases it was simply sold. The income generated did not go to the villagers, but either went into the funds of the military unit exacting the labour, or individuals within that unit. Some money might be paid to commanders outside the unit itself. In most cases the military unit involved was the local army camp or battalion (including NaSaKa units in areas where these operate), but larger schemes might be implemented at the Light Infantry Division or Regional Command level. (Endnote 580)

395. For cultivation, the forced labour of villagers was used for the entire process, from clearing the land to harvesting the crop. For logging, villagers had to fell the trees and saw them into timber. For brick-making, they had to provide the raw materials and fuel in addition to labour for the process. The villagers were not paid and had to provide their own tools and equipment. Often, the land on which cultivation projects were implemented was confiscated from villagers without compensation. In certain cases, land with an existing crop was confiscated without compensation, the owners of the land were forced to continue tending that crop, and when ready the crop had to be given to the military. In other cases, the process appeared to be one of direct extortion: a village was simply ordered to deliver a certain quantity of crop to the military at the end of the season, and it was up to that village to arrange land, obtain seed or seedlings, and tend and harvest the crop. The villagers were not remunerated in any way. In the extreme case, harvested crops were simply seized by the military; poultry, livestock and other items were similarly seized. Theft of such property was most common in areas recently occupied by the military, or areas with insurgent activity. (Endnote 581)

396. Specific examples. Information received by the Commission in this regard covered most areas of Myanmar, including Kachin, Kayah, Kayin, Mon, Shan and Rakhine States and Bago, Sagaing and Tanintharyi Divisions. This kind of work was more common in areas where the military had a more well-established presence. Information was received that several battalions in Tanintharyi Division (Endnote 582) had used forced labour on projects they controlled for their own benefit or that of their officers. (Endnote 583)

397. The largest volume of information received related to the cultivation of food and cash crops for the military. These crops included rice, vegetables such as beans and corn, sugar cane and rubber for a number of battalions in Kachin, (Endnote 584) Kayah, (Endnote 585) Kayin, (Endnote 586) Mon, (Endnote 587) Rakhine (Endnote 588) and Shan (Endnote 589) States and Bago, (Endnote 590) Sagaing (Endnote 591) and Tanintharyi (Endnote 592) Divisions. In Rakhine State, Muslims were also forced by the military to do cultivation work for Burmese and Rakhine villagers. (Endnote 593) The information covered a period from before 1994 to at least 1997.

398. Information was received regarding the use of forced labour for logging and bamboo cutting that appeared to be for commercial purposes. The information covered Kayin, (Endnote 594) Mon, (Endnote 595) and Shan (Endnote 596) States and Sagaing (Endnote 597) and Tanintharyi (Endnote 598) Divisions over the period from 1992 to the present.

399. Information was received regarding the use of forced labour for animal husbandry, most commonly at shrimp farms. The information was from Rakhine State (Endnote 599) and Sagaing Division. (Endnote 600) The information covers a period from 1989 to at least 1995.

400. Information was received regarding the operation by military units of kilns for the production of bricks. There was information of forced labour for the collection of fuel for the kilns and work on the kilns themselves, in Kayin State, (Endnote 601) Rakhine State (Endnote 602) and Tanintharyi Division. (Endnote 603) The information covers a period from at least 1994 to 1996.

(b) Oral testimony

401. Evidence from witnesses revealed that throughout the country the military conduct activities such as cultivation, fish and shrimp farming, forestry and manufacturing which are likely to enable them either to meet their material needs or produce profit. The evidence also shows that they mobilize the population, forcing the people to carry out these activities in difficult conditions.

402. Fifty-eight witnesses gave evidence to this effect, (Endnote 604) thus enabling the Commission to identify some of the common practices of the military.

403. Some witnesses were forced to cut wood and bamboo, which the military subsequently sold. (Endnote 605) Other witnesses were obliged to farm fish (Endnote 606) or prawns (Endnote 607) for the military, including all associated work, from the setting-up of the project to its continued maintenance.

404. Several witnesses were coerced into agricultural activities which are organized in various ways. In some cases the military seize the land from villagers, without compensation, and forces them to cultivate it for their benefit. (Endnote 608) Witnesses claimed to have had to leave Myanmar because they no longer had enough land to make a living. (Endnote 609) In other cases, the military oblige the workers to cultivate land located within the military camp, (Endnote 610) or to clear the forest or jungle near the camp so as to make this land suitable for cultivation. (Endnote 611) The military often specify the quantity of the crop to be produced. If this quantity is not produced, the villagers have to make up the difference under pain of sanction. (Endnote 612)

405. Witnesses who supplied relevant evidence referred to crops of chillies, (Endnote 613) corn, (Endnote 614) rice, (Endnote 615) rubber, (Endnote 616) walnuts, (Endnote 617) sugar cane (Endnote 618) and pineapple. (Endnote 619)

406. One person per family is usually requisitioned to perform the agricultural work, (Endnote 620) the order specifying the tasks to be done being transmitted through the intermediary of the village head. (Endnote 621) The witnesses stated that they had received no pay for the work performed and had to supply their own food, tools or oxen for ploughing. (Endnote 622)

407. Finally, the evidence reveals that the military occasionally enter villages and seized, without any compensation, whatever animals or crops they find. (Endnote 623)

(6) Construction and maintenance of roads, railways and bridges

(a) Documentary material

408. Nature and conditions of work. The Commission received considerable detailed information concerning the use of forced labour on the construction of roads and railways. These ranged in size from small projects using the labour of a few local villages such as the clearing of a dirt road to a newly-established military camp (Endnote 624) to those using tens or hundreds of thousands of labourers. For example, the government stated in comments to the ILO that "799,447 working people ... contributed voluntary labour" (Endnote 625) for the construction of the Aungban to Loikaw railway connecting Shan and Kayah States; elsewhere it has stated that 921,753 people contributed to the building of the Pakokku to Monywa section of a railway in Magway and Sagaing Divisions connecting Chaung-U to Kalaymyo via Pakokku, (Endnote 626) and that over 44,000 people were "contributing voluntary labour" on a single day on three sections of the Ye to Dawei (Tavoy) railway between Mon State and Tanintharyi Division in January 1994. (Endnote 627)

409. Witnesses informed the Commission that those persons from whom they had obtained secondary statements consistently told them that the projects which they had been forced to work on did benefit them. This was in part because local forms of transport (of which the most common was the bullock cart) were not permitted to use these roads; in general only motor vehicles could use them, and the vast majority of villagers did not own such vehicles. (Endnote 628)

410. Once a project was completed, this did not necessarily mean an end to forced labour connected with it. Often on completion of a road or railway, particularly in conflict areas, people were forced to work as unarmed sentries guarding it at night, and to sweep roads for mines before troops pass, as discussed in paragraphs 374-388 above. People also had to provide labour for the maintenance of the project, and repair it in the event of damage. In the rainy season, roads and other infrastructure often washed out, and so more forced labour was required to repair them in the following months (around November to January). In particular, because roads were usually not sealed, were in any case poorly constructed and sometimes traversed paddy fields, they were damaged easily and most had to be rebuilt every year. (Endnote 629)

411. In rural areas a given household might have to provide a worker for as much as two weeks in a month, and sometimes even more, especially if there was more than one project being carried out simultaneously. This was in addition to any other forced labour demands, such as portering or work at military camps. In some cases when a project was particularly urgent or important, all the able-bodied persons from a village were required to participate in the work. It should be noted that the forced labour requirement for these projects appeared to be significantly less in urban areas than in rural villages.

412. In addition to the forced labour of civilians, there were also a number of labour camps across the country where prisoners (Endnote 630) were used for the purpose of constructing roads, railways, and other infrastructure, or working in quarries to provide materials for such construction. These prisoners frequently worked in heavy shackles. Members of the Tatmadaw were also required to work on such projects. (Endnote 631)

413. The Commission was provided with detailed information on the working conditions of forced labourers. People might have to travel considerable distances to work sites, particularly for more extensive projects requiring large numbers of labourers. There was information that people from as far 100 km away were forced to work on the construction of the railway from Ye to Dawei (Tavoy). (Endnote 632) In general it appeared to be common for workers to have to walk for several hours to reach a work site. (Endnote 633) When a village, household or worker was required to complete a given amount of work (a given length of embankment, a given number of kyin (Endnote 634) of excavation or crushed stones), they were not able to leave until that work was completed. Often, a time period was specified within which the work had to be completed. If the work was not completed to the satisfaction of the soldiers supervising the work (if the work was done slowly, or was of bad quality, for example), that village, household or worker would not be allowed to return home, and those involved might be beaten or otherwise punished.

414. Workers usually had to arrange their own transport to the work site, though in some cases owners of suitable transport would be ordered to provide free transport for workers at their own cost. (Endnote 635) Workers usually had to bring their own food and necessary tools, though in certain circumstances tools were provided (when the population would not normally own the necessary tools, either because it was an urban population, or because the work required special tools). If they became sick, they were not treated, and usually had to pay a fine or arrange a replacement to enable them to return to their village to seek medical attention. (Endnote 636) If they were injured they were in most cases neither treated nor given any compensation. (Endnote 637) Deaths from sickness and work accidents appeared to be frequent on some projects. (Endnote 638)

415. People forced to work on these projects were not paid, other than in exceptional circumstances. (Endnote 639) The Commission received information that forced labourers were paid in some circumstances for work on the railway from Ye to Dawei (Tavoy), but this was the only project for which the Commission received such information, and even on this project payment was rare and often at rates far below prevailing market rates; (Endnote 640) payment did not appear to have continued, as there were several reports of unpaid forced labour on the project in 1997. (Endnote 641)

416. If a worker was required from each household, this was usually irrespective of the number of able-bodied persons in the household, so that if a household consisted of a widow and her child, she would have to go and either take her child with her or arrange for someone else to look after it. (Endnote 642) If there was only one adult male in a household and he had to work for the family's income, another member of the household would have to go or the family would starve. This was especially true in the rainy season, which was the busiest period for farmers, but also the most dangerous at work sites because of the increased prevalence of disease and increased risk of injury or death from landslides and collapsing embankments. (Endnote 643) Thus, not only was there a large proportion of women, children and older workers at work sites, but they were more likely to be at risk from disease and accidents. (Endnote 644) Such people were also particularly vulnerable to abuse at the hands of the soldiers. (Endnote 645)

417. Once they arrived at the work site, workers would usually have to make their own arrangements for accommodation. This meant arranging to stay at a nearby village, or building some kind of shelter at the work site. Often, workers simply had to sleep at the work site with no shelter. (Endnote 646) There was usually no sanitation or other facilities of any kind provided at work sites. For some larger projects, however, which had work sites established for longer periods of time, some facilities such as sanitation and shelter might be present, though these had been constructed using the forced labour of other villagers.

418. The workers were usually supervised by the military, though on certain projects soldiers might not be actually present all the time. Since the military knew who had been assigned to which section, they were able to take action if a certain piece of work was not completed, and thus did not necessarily need to be present while the work was being carried out (though they often were). Workers were usually forced to work for long hours, typically between eight and 12 hours per day, (Endnote 647) with only a one-hour break for lunch in the middle of the day. Workers were usually not permitted to take rest breaks at other times. (Endnote 648) Workers were subject to verbal and physical abuse by the soldiers overseeing the project, particularly if they were not working to the satisfaction of the soldiers; some workers had died as a result of physical abuse. (Endnote 649) Cases of soldiers raping female workers were not uncommon. (Endnote 650) Punishments given to workers in cases where they were perceived to be working badly or refused to carry out forced labour included kickings, punchings, beatings with canes, sticks or pieces of bamboo, arrest and detention at a military camps, confinement in stocks, or in some cases severe torture or execution. (Endnote 651)

419. Specific examples. The Commission received extensive and detailed information regarding the use of forced labour in connection with road construction, repair and improvement projects. The information covered all fourteen States and Divisions in Myanmar.

420. There was information regarding the use of forced labour on the construction or improvement of major road projects in many parts of the country. These included a road from Myitkyina to Putao (through Sumprabum) in Kachin State, in 1994 and 1995; (Endnote 652) the Mandalay ring road in 1994 and 1995; (Endnote 653) parts of the Yangon to Mandalay highway (through Toungoo) from 1994 to at least 1996; (Endnote 654) a road from Haka in Chin State to Gangaw in Magway Division in 1996 and 1997 (Endnote 655) and from Gangaw to Kalaymyo in Sagaing Division in 1995; (Endnote 656) the highway from Yangon to Sittway (Rakhine State) since 1988 and a four-lane road continuing from Sittway on to Taungpyo on the Bangladesh border in 1991 and 1992; (Endnote 657) the Labutta to Yangon road (through Myaungmya, Pantanaw and Nyaungdone) linking Yangon and Ayeyarwady Divisions, over the past few years; (Endnote 658) and on a road linking Ye in Mon State with Kawthaung in the far south of Tanintharyi Division, through Dawei (Tavoy) and Myeik (Mergui), since 1994. (Endnote 659)

421. In addition to these major road projects, the information provided to the Commission indicated that in various parts of the country extensive networks of roads were constructed with forced labour, particularly in areas recently-occupied by the military after offensives against opposition groups. A considerable volume of information was provided regarding the construction of a major road network throughout Kayin State and bordering areas of Bago Division, (Endnote 660) between 1993 and 1998, as well as on the upgrading of some existing roads in the area. (Endnote 661) Forced labour was also used on a regular basis for crushing stone in Kyaukkyi township for road construction. (Endnote 662) The road network in Chin State (Endnote 663) was also improved and extended over the last few years using forced labour, (Endnote 664) and in Shan State the network of roads in certain areas in the south of the State (Endnote 665) has been improved with forced labour since at least 1992, but particularly since 1996. (Endnote 666) In Tanintharyi Division, in addition to the road from Ye to Kawthaung mentioned in paragraph 420 above, there appeared to be two particular areas where road networks were being developed with forced labour: in the area of Tanintharyi town since 1994, and particularly since 1996, (Endnote 667) and in the area around Kanbauk in Yebyu township in 1995. (Endnote 668)

422. There was also information regarding road construction and improvement in Kayah State, particularly roads to relocation sites; (Endnote 669) Mon State; (Endnote 670) Sagaing Division; (Endnote 671) Rakhine State; (Endnote 672) and Ayeyarwady Division. (Endnote 673)

423. In addition to road construction projects, the Commission received information regarding the use of forced labour on railway construction projects in various parts of Myanmar. A large volume of information covering a period from 1992 to 1997 and including copies of orders from the authorities requiring labour for the project indicated that thousands of people (Endnote 674) were forced to work on the construction of a railway from Ye in Mon State to Dawei (Tavoy) in Tanintharyi Division. (Endnote 675)

424. In Shan State, people were forced to work on a number of railway construction projects, including a railway from Shwenyaung to Namhsam since 1993, a section of railway from Namhsam to Mongnai since 1992, and a section of railway from Laikha to Mongkaing in 1996. (Endnote 676)

425. Information was received concerning the use of forced labour for the construction of a railway from Aungban in Shan State to Loikaw in Kayah State, in 1992 and 1993. (Endnote 677) People were taken from, among other places, Loikaw town and relocation camps, including a relocation camp near Demawso, to build the railway.

426. Information was also received concerning the use of forced labour on a railway linking Chaung-U and Pakokku to Kalaymyo, particularly the section from Pakokku to Myine in Magway Division and the section from Gangaw in Magway Division to Kalaymyo in Sagaing Division. (Endnote 678) Many of those forced to work on the latter section were from Chin State. The information covered a period from 1993 to 1995. (Endnote 679)

(b) Oral testimony

427. Roads and related infrastructure. Almost 100 witnesses, from different ethnic groups, (Endnote 680) gave evidence that they had been forced to work or to have observed other persons forced by the authorities to work on roads or related infrastructure. These testimonies cover a significant part of the territory of Myanmar; they refer to roads forming part of a network between towns and villages, or roads linking army camps to this network or to one another, (Endnote 681) and mainly recount events occurring over recent years, if not months. (Endnote 682) One witness, who returned to Myanmar at the beginning of 1998 after an absence of six years, stated that the work demanded of the population in respect of road construction and maintenance had increased substantially. (Endnote 683)

428. As regards work organization and working conditions, testimonies from persons who had been obliged to work corroborate those of village heads, (Endnote 684) heads of village sections (Endnote 685) and a deserter from the Tatmadaw who had been involved with organizing such labour. (Endnote 686)

429. Throughout the territory of Myanmar, the authorities recruit the necessary labour for the roadworks according to a similar pattern. The military transmit a written order to the village head; (Endnote 687) this order specifies the work to be accomplished and is sometimes accompanied by threats, which are expressed by means of a bullet or a piece of charcoal attached to the order; these symbols signify that reprisals may be taken by the authorities against the defaulting person or village. (Endnote 688) With the exception of the situation prevailing in the northern part of Rakhine State, to which we shall return, the military do not generally intervene directly. (Endnote 689)

430. A specific section of road to be built or repaired is assigned to each group, section or village. The village head is responsible for organizing the necessary labour force. (Endnote 690) One person per family is generally called up, though the authorities may demand others as needed. (Endnote 691) The witnesses stated that men, women and children between the ages of 12 and 72 performed compulsory labour on roadworks. (Endnote 692) Even members of families that might be in a position to have a certain influence on the authorities are obliged to work on road construction or repairs. (Endnote 693) Large numbers of children can be found working on these sites since, as soon as they are capable of working, their parents send them to perform the work demanded; they themselves can therefore continue to provide for the family needs, by cultivating their land or engaging in remunerated employment or work. (Endnote 694)

431. Road construction work generally consists of levelling the ground, cutting trees, breaking stones, transporting earth for embankments and spreading tar. (Endnote 695) As for repairs, the workers must maintain the roads and are even forced to rebuild them completely, in certain regions, after each rainy season. Several witnesses stated that the roads built or renovated were reserved for the exclusive use of the authorities. (Endnote 696)

432. Working conditions are arduous, (Endnote 697) and the working day is long, varying from 8 to 12 hours. (Endnote 698) The work is sometimes accompanied by ill-treatment, including beating and kicking. (Endnote 699) Acts of torture or extreme violence, including rape, also occur. (Endnote 700) Some workers have died as a result of complications due to hunger, malaria, other infectious diseases and lack of timely medical care. (Endnote 701)

433. Apart from rare and exceptional occasions, the persons recruited were neither paid nor fed. (Endnote 702) When questioned on this subject, the witnesses all stated that they could not refuse to do the work, because they were afraid of the physical punishment or fines which could be imposed by the authorities. (Endnote 703) Tools are generally not provided (Endnote 704) and, if the workers have to live on the site, they must build their own makeshift shelters in which to sleep at night. (Endnote 705)

434. In several cases, witnesses have stated that it is possible to be exempted from work in exchange for a sum of money which varies considerably from case to case. (Endnote 706) One witness observed that the result of this practice was that the least well-off carried the greatest burden of the work, since they did not have sufficient means to be spared. (Endnote 707)

435. Finally, the situation in the northern part of Rakhine State appears to be more severe in all respects than that prevailing in most other parts of the country. Most of the witnesses questioned on this subject, who were members of the Rohingya ethnic group, and who had left the country very recently, claimed to have been subjected to systematic discrimination by the authorities; the discrimination took the form, in so far as work on the roads is concerned, of an overwhelming workload. (Endnote 708) In fact, the work is not really organized systematically; (Endnote 709) the Rohingyas may be required to work by any authority, be it the army, the NaSaKa or the local police. The order may come via the village head or directly from any authority that needs workers for a given job. Working conditions are excessively arduous; tasks must be performed in an atmosphere where insults, abuse, ill-treatment and torture are commonplace. (Endnote 710)

436. Railways. From the evidence of witnesses, the Commission concludes that the authorities of Myanmar have been using forced labour for the construction and maintenance of various railways across the country since at least 1990. Forty-one witnesses (Endnote 711) supplied the Commission with relevant information on railways already constructed, or under construction, in Kachin, (Endnote 712) Kayah, (Endnote 713) Mon (Endnote 714) and Shan States and in Bago, (Endnote 715) Tanintharyi and Yangon Divisions.

437. The labour for the railway construction work is recruited in the same manner as for road construction, the military using the services of village heads. (Endnote 716) One person per family is generally called up. (Endnote 717) Each family, group or village is assigned a section of the railroad. (Endnote 718) Men, women and children claimed to have worked on these railway construction sites or to have seen such persons forced to do so; (Endnote 719) it is common to meet children sent by their families to perform the work required. (Endnote 720)

438. Soldiers and prisoners can also be found working on these sites. The work done by them is no different from that demanded of civilians, except for the fact that the soldiers have only to work a fixed number of hours and are not necessarily obliged to complete the task assigned, (Endnote 721) and that the most tedious work is reserved for the prisoners. (Endnote 722)

439. Work on railway construction consists, initially, of preparing and levelling the ground. (Endnote 723) Subsequently, the workers have to crush the necessary stone, (Endnote 724) lay the chippings, cut wood to make sleepers (Endnote 725) and then lay the sleepers and rails. (Endnote 726) This is followed by maintenance work involving removal of weeds and scrub. (Endnote 727) Work starts early in the morning and finishes late in the day, sometimes after dark; in some cases the workers are not even able to take a short break at midday. (Endnote 728)

440. The workers are not fed, (Endnote 729) have to sleep at the work site if it is too far from their homes (Endnote 730) and usually have to provide the tools necessary for the performance of the task. (Endnote 731) They are not paid, (Endnote 732) though some claim to have been promised compensation, which they never actually received. (Endnote 733)

441. Workers are subjected to ill-treatment when the supervising military authorities consider that the work is not progressing satisfactorily. (Endnote 734)

442. It is possible to be exempted from the work by paying a certain amount of money to the authorities (Endnote 735) or by finding a replacement. (Endnote 736)

443. Finally, one witness mentioned that the military demanded a tax, over and above the work to be carried out, because of the fact that the railway would henceforth pass near his village. (Endnote 737)

(7) Other infrastructure work

(a) Documentary material

444. Nature and conditions of work. In addition to the use of forced labour on the construction of roads, railways and associated infrastructure, the Commission also received information that people from most parts of Myanmar were forced to work on the construction and maintenance of other infrastructure projects. These projects included irrigation works, dams, canals, power-stations, a gas pipeline, airports, helipads, schools, hotels and a museum, as well as infrastructure related to events such as the student sport festival which takes place annually in a different State or Divisional capital. (Endnote 738)

445. The general nature and organization of such work was the same as that described for road and rail infrastructure. (Endnote 739)

446. Specific examples. The information provided to the Commission contained details of the use of forced labour on a large number of other infrastructure projects from most parts of the country.

447. Forced labour was used to construct dams and other work for irrigation and hydroelectric power generation. This work included dams in Bago Division (Endnote 740) and Rakhine State, (Endnote 741) dams and irrigation projects in Sagaing Division, (Endnote 742) a major dam project in Shan State, (Endnote 743) a dam in Tanintharyi Division (Endnote 744) and a canal in Yangon Division. (Endnote 745) Most of these projects were major, involving hundreds or even thousands of labourers.

448. There was evidence before the Commission in the form of secondary statements that forced labour was used for the construction of helipads in Yebyu township in Taninharyi Division: helipad at Byu Gyi village, another helipad between Kadaik and Ohnbinkwin, and a third helipad between Migyaunglaung and Mayan Chaung, all in 1995. (Endnote 746) There was also evidence in the form of a secondary statement relating to a helipad being constructed in the same region in 1996. (Endnote 747) In a communication addressed to the Commission, TOTAL stated that most of the helipads situated on the pipeline route had been constructed by TOTAL or by companies working for TOTAL and applying its code of conduct, although TOTAL did not know under what conditions other helipads in the region had been constructed. (Endnote 748)

449. There was information that forced labour, including that of non-Buddhists, was used on the construction and renovation of pagodas in Chin State, (Endnote 749) Shan State, (Endnote 750) Tanintharyi Division, (Endnote 751) the construction of a monastery in Sagaing Division, (Endnote 752) as well as for work at Bayintnaung Palace at Toungoo in Bago Division, (Endnote 753) Mandalay Palace (Endnote 754) and on the construction of a Buddha Museum at Sittway in Rakhine State. (Endnote 755)

450. Information was provided regarding the use of forced labour for schools in Chin State, Kayin State and Sagaing Division, and clinics in Sagaing Division and Tanintharyi Division. (Endnote 756)

451. Forced labour was used for other projects including the Student Sport Festival in Chin and Rakhine States, (Endnote 757) hotels in Rakhine State, (Endnote 758) a toilet for a village in Kayin State, (Endnote 759) and a 30-mile fence in Kachin State. (Endnote 760)

452. There was evidence before the Commission in the form of secondary statements that forced labour was used until May 1995 for ground clearance work to provide access to survey teams for the Yadana gas pipeline project in Yebyu township, Tanintharyi Division. (Endnote 761) In a communication addressed to the Commission TOTAL stated that it was wrong to claim that the preparatory clearing work could have been undertaken by forced labourers for the purpose of facilitating the access of the project teams. During the years 1993 and 1994, clearing work had been carried out under the supervision of TOTAL by the Compagnie générale de géophysique (CGG). (Endnote 762) In view of the contradiction between the facts presented, and since the Commission was denied access to Myanmar to supplement its evidence, no finding on this matter could be made.

(b) Oral testimony

453. Twenty-two witnesses gave evidence covering the period between 1993 and 1998 (Endnote 763) concerning infrastructure works involving forced requisition of persons by public authorities carried out in Kayah, Kayin, Mon, Rakhine and Shan States and in the Ayeyarwady, Bago and Sagaing Divisions. (Endnote 764)

454. The infrastructure works consist, inter alia, of construction of irrigation canals, (Endnote 765) drainage channels, (Endnote 766) airports, (Endnote 767) a hydroelectric power station, (Endnote 768) villages, (Endnote 769) museums (Endnote 770) or schools, (Endnote 771) laying of electrical cables (Endnote 772) or telephone lines, (Endnote 773) and general infrastructure works in preparation for the Student Sport Festival, including levelling and preparation of a sports field. (Endnote 774) The irrigation work generally involved hundreds of persons coming from dozens of villages that were often far from the work site. As for telephone lines, a witness gave evidence that he had to cut logs for the line between Panglong and Laikha. (Endnote 775)

455. Work organization and working conditions are similar to those described for road and railway infrastructure. (Endnote 776) The order specifying the work to be performed is usually transmitted by the village head or ward authorities (Endnote 777) responsible for finding labour to carry out the required work. However, the military may intervene directly and round up the persons needed. (Endnote 778)

456. Each village or group (Endnote 779) is assigned a section of the project to be completed. (Endnote 780) To this end, one person per family is usually requisitioned (Endnote 781) and the work is divided up in accordance with a pre-established rota among the families of the village or group involved. Men, women and children -- some of them barely ten years old (Endnote 782) -- work on these sites.

457. The workers are neither paid (Endnote 783) nor fed (Endnote 784) and sometimes have to spend several nights on the site of their work assignment. (Endnote 785) Several witnesses stated that they could avoid having to perform this work if a replacement was found. (Endnote 786) Finally, the conditions under which the work has to be performed are arduous; the workers are frequently subjected to ill-treatment or other violations of fundamental human rights, including acts of torture. (Endnote 787)

(8) General work

(a) Nature and condition of work

458. Information was also provided to the Commission that people throughout the country were forced to carry out regular tasks such as cleaning and beautifying public areas, particularly when important officials were due to visit. Because the nature of the work meant that it was mostly applicable to urban areas, it was mostly urban residents who had to carry it out. Government employees in particular were coerced into doing this work during the weekends. (Endnote 788)

459. The ward authorities were usually responsible for organizing such work. Typically, one person from each household in the ward would have to participate for one day per weekend to carry out these tasks. Soldiers were sometimes used to supervise this work. (Endnote 789)

460. Residents were also required to maintain their houses to certain specifications, or face eviction. Such specifications could include keeping the house painted, or replacing thatch roofs with a corrugated-iron roof. (Endnote 790)

(b) Specific examples from documentary material and oral testimony

461. The Commission obtained evidence on this topic from several parts of the country. In Myaungmya in Ayeyarwady Division, local authorities required one person from each household to work every Saturday cleaning roads and the school and hospital compounds. (Endnote 791) Similarly, one person per family had to do various jobs in the city of Mandalay. (Endnote 792) Forced labour was also regularly used for cleaning up the area around the lake at Hpa-an in Kayin State (Endnote 793) as well as for half a day every Saturday at Loikaw in Kayah State, both around the town, (Endnote 794) and at an army camp. (Endnote 795) General cleaning and maintenance work also had to be done by one member of each household every Saturday in Kawthaung town in Tanintharyi Division. (Endnote 796) Finally, forced labour was used for cleaning the town of Mrauk-U in Rakhine State in 1996 in preparation for a visit by a high-level government official. (Endnote 797)

462. In reaching these findings of fact as set out in section C, the Commission was impressed with the truthfulness of the accounts given by the witnesses from whom it heard direct testimony. The questions asked by the Commission of these witnesses probed issues with a view to establishing veracity, which included issues about any political affiliation or membership of any opposition group. In many instances the witnesses were not educated people and the Commission was struck by the fact that overall they were careful to draw the distinction between matters which they had seen or experienced, and matters of which they had only heard from others. The Commission was also struck by their candour and absence of exaggeration. For these reasons, the Commission had no hesitation in relying on their testimony.

463. In reaching its findings of fact in sections B and C, where those findings relied on documentary evidence as discussed, the Commission had regard to the relative probity of documentary material as indicated. The Commission was assisted in this task by its confidence in the oral testimony of witnesses and by the extent to which the oral testimony corroborated so many aspects of the documentary material, both as to general patterns and specific detail.

464. Having regard to the vast amount of documentary material available, the Commission took account of what it considered as the most reliable information and although many of its findings could be supported by other documentation, it has footnoted the major sources and not all sources. Again, the Commission is confident in these findings.

465. The Commission wishes to acknowledge that this inquiry and its findings would not have been possible without the assistance of a number of people. While it is unusual for witnesses to be acknowledged in an inquiry, in this case the persons who gave oral testimony did so in conditions of considerable physical difficulty and with a great fear of reprisal from authorities to themselves or their families should their identities become known. In one instance, witnesses, including one who was ill, travelled for some 20 days in order to provide testimony to the inquiry.

466. The Commission is also indebted to a number of individuals and non-governmental organizations who assisted with identification of pools of witnesses and who made the sometimes very complicated arrangements for the Commission to meet them. It was the dedication of these people which enabled the Commission to have such a spread of witnesses, with recent information about conditions in Myanmar.

467. Finally, on this aspect, the Commission wishes to pay tribute to staff who not only braved the sometimes difficult physical circumstances assisting the Commission members in taking the evidence in locations, but also had the task of carefully cross-referencing and sifting through the vast documentary material to identify the information referred to in this chapter. The relatively simple way in which facts are described in this chapter belies the complexity of the task, although the footnotes give some glimmer of their invaluable work.

13. Findings as to compliance with the Convention

468. Obligations under the Convention. As indicated above for States having ratified the Convention, (Endnote 798) under Article 1(1) of the Convention, the Government of Myanmar must neither exact forced or compulsory labour nor tolerate its exaction, and it must ensure the repeal of any laws and statutory or administrative instruments that provide or allow for the exaction of forced or compulsory labour, so that any such exaction, be it by private persons or public servants, is found illegal in national law.

469. In this chapter, the Commission will set out its findings as to whether the Government of Myanmar has complied with its obligations under the Convention as regards national laws, statutory and administrative instruments as well as actual practice. In doing so, the Commission will also refer to the exceptions provided in Article 2(2) of the Convention (Endnote 799) and the present status of Article 1, paragraph 2, and Article 4 et seq. of the Convention. (Endnote 800) Furthermore, in setting out its findings as to the compliance of national law and practice with the obligations under the Convention, the Commission will address the issue of enforcement of the prohibition of forced labour under Article 25 of the Convention. (Endnote 801)

A. National laws and statutory or administrative standard-setting instruments, considered in the light of the Convention

(1) Provisions of the Village Act and the Towns Act and subsequent orders and directives dealing with the requisition of labour

(a) Applicability of the definition of forced labour

470. The Commission notes that section 11(d), read together with section 8(1)(g), (n) and (o) of the Village Act, (Endnote 802) as well as section 9(b) of the Towns Act (Endnote 803) provide for the exaction of work or services from any person residing in a village tract or in a town ward, that is, work or services for which the said person has not offered himself or herself voluntarily, and that failure to comply with a requisition made under section 11(d) of the Village Act or section 9(b) of the Towns Act is punishable with penal sanctions under section 12 of the Village Act or section 9A of the Towns Act. (Endnote 804) Thus, these Acts provide for the exaction of "forced or compulsory labour" within the definition of Article 2(1) of the Convention. (Endnote 805)

(b) Non-applicability of exceptions defined in Article 2(2) of the Convention

471. The Commission notes that the provisions of the Village Act and the Towns Act under which residents may be required to perform forced or compulsory labour on a general or individual requisition of the headman are "widely worded", as was also noted in Executive Orders made under the Village Act; (Endnote 806) indeed, residents are to assist the headman in the execution of his public duties, (Endnote 807) which in turn include the duty to supply guides, messengers, porters, etc., to any troops or police posted near or marching through a village tract and generally to assist all officers of the Government in the execution of their public duties. Thus, the labour and services that may be exacted under the Village Act and the Towns Act are as indefinite as the needs of the Government; they are limited neither to emergencies nor to minor communal services as defined in Article 2, paragraph 2(d) and (e), of the Convention, (Endnote 808) and more generally do not come under any of the exceptions listed in Article 2, paragraph 2.

(c) Expiration of the transitional period

472. In its observations on the complaint, the Government has not invoked Article 1(2) of the Convention which allowed for recourse to forced or compulsory labour during a transitional period, for public purposes only, and as an exceptional measure, subject to the conditions and guarantees provided in the Convention; neither has it done so on earlier occasions. (Endnote 809) For the reasons mentioned above, (Endnote 810) the Commission considers that use of a form of forced or compulsory labour falling within the scope of the Convention as defined in Article 2 may no longer be justified by invoking observance of the provisions of Article 1, paragraph 2, and Articles 4 to 24, although the absolute prohibitions contained in these provisions remain binding upon the States having ratified the Convention. Moreover, in the present case, the undertaking under Article 1(1) of the Convention to suppress the use of forced or compulsory labour in all its forms within the shortest possible period precludes the Government from having recourse to legislation that it had over many years declared obsolete and not applied. (Endnote 811) The Commission nonetheless notes that the wide powers to requisition labour and services laid down in the Village Act and Towns Act are incompatible not only with the obligation to suppress the use of forced or compulsory labour under Article 1, paragraph 1, read together with Article 2 of the Convention, but also with the conditions and guarantees laid down in Articles 9 to 14 and 17 to 19 of the Convention to restrict and regulate recourse to compulsory labour pending its suppression. (Endnote 812)

(d) Role of secret directives and payment of wages

473. Section 8(1)(g) of the Village Act provides for payments to headmen for the collection and supply of guides, messengers, porters, etc., but nowhere in the Village Act or Towns Act is provision made for any payment to residents called up for labour or services. The (secret) order dated 2 June 1995 on "Prohibiting unpaid labour contributions in national development projects" stresses that "in obtaining the necessary labour from the local people, they must be paid their full share". (Endnote 813) While Article 14 of the Convention provided for the remuneration of forced or compulsory labour exacted during the transitional period, the mere payment of wages for labour obtained through the call-up of local residents does not remove such labour from the scope of the definition of forced or compulsory labour in Article 2(1) of the Convention. Payment does not change the character of labour exacted compulsorily or by force; it merely becomes paid compulsory or forced labour. This follows not only from the definition in Article 2(1) itself (which does not address the issue of remuneration) but also from the very logic of Article 14, which deals with the remuneration of labour defined as forced or compulsory. Also, the "national development projects" to which the secret order refers do not come under any of the exceptions in Article 2(2) of the Convention, so that recourse to compulsory labour for such projects, even if fully remunerated, must be suppressed under Article 1(1) of the Convention. In summary, the (recent) Order dated 2 June 1995 did not exonerate the Government from its obligations under the Convention.

474. As set out above, (Endnote 814) the (equally secret) directive (No. 82) dated 27 April 1995 "To stop obtaining labour without compensation from the local people in irrigation projects" in Yangon Division appears to go further towards suppressing recourse to forced labour than the recent order referred to in the previous paragraph, in that it mentions, in the unofficial English translation, the "hire" of paid labourers. However, the directive remains equivocal where it refers to stopping "the practice of obtaining labour from the local people without monetary compensation", which might allow for a continuation of the practice of "obtaining" labour from the local people, albeit with compensation. In any event, both texts are marked secret and thus appear not to be available to those who are supposed to benefit from them.

475. More importantly, evidence before the Commission on actual practice, (Endnote 815) which is set out in Chapter 12 and which will be considered in section B of the present chapter, (Endnote 816) shows the continued call-up of local people for labour and services (without any compensation).

(2) Legislation on citizenship and other instruments bearing on the freedom of movement

476. The Commission notes that the sequence of legislative and administrative instruments progressively denying citizen status to the Rohingyas, (Endnote 817) read together with the restrictions on the freedom of movement of foreigners, (Endnote 818) as well as more general requirements aimed at controlling all movements of people (Endnote 819) do not in themselves come within the scope of the Convention. Nonetheless they have a direct bearing on the possibility for people to avoid being called up as "residents" for forced or compulsory labour, under the Village Act and the Towns Act as well as in actual practice. This particularly affects the Rohingyas population in northern Rakhine State.

(3) Legislation on compulsory military service

477. The Commission notes that the provisions of the People's Militia Act, as adopted in 1959, appear to be covered by the exception in Article 2(2)(a) of the Convention. (Endnote 820) The Commission is not aware of any subsequent modifications of the Act, nor does the Commission know whether the Act has been brought into force. (Endnote 821) Where soldiers have been used on civilian development projects, as claimed by the Government, (Endnote 822) involvement of conscripts would not have been compatible with the terms of the exception in Article 2(2)(a) of the Convention and would thus be contrary to the obligation under Article 1(1) of the Convention, whereas the use for such purposes of career soldiers having joined the armed forces on a voluntary basis, falls outside the scope of the Convention.

(4) Sanctions for illegally imposing forced or compulsory labour

478. Section 374 of the Penal Code, quoted in paragraph 258 above, complies with the first requirement of Article 25 of the Convention, namely that "The illegal exaction of forced or compulsory labour shall be punishable as a penal offence". Whether the penalties under section 374, which may range from a fine to imprisonment of up to one year or both, do comply with the second requirement of Article 25 of the Convention, namely that they "are really adequate", could only be appreciated if they were "strictly enforced", as Article 25 of the Convention furthermore requires. In the absence of any indication that section 374 of the Penal Code was ever applied, (Endnote 823) the Commission is bound to point out that penalties under that provision, as well as under Article 25 of the Convention, are to be imposed for the exaction of forced or compulsory labour that is found illegal. Thus, only a requisition of labour and services that is not covered by the very wide provisions of the Village Act or the Towns Act could, in theory, be punished at the present stage under section 374 of the Penal Code, while forced labour imposed in violation of the Convention but in conformity with the Village Act or the Towns Act might not be punishable at the national level. However, as set out in paragraph 204 above, any person who violates the prohibition of recourse to forced labour in international law is guilty of an international crime and thus bears an individual criminal responsibility. Under Principle II of the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal (Endnote 824) and in the Judgment of the Tribunal, "The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law". (Endnote 825)

B. National practice considered in the light of the Convention

479. In this part of the chapter, the Commission will set out its findings as to compliance with the Convention of national practice, as established in Chapter 12. The Commission will consider the applicability of the definition given in Article 2(1) of the Convention and that of the exceptions listed in Article 2(2) to the various forms of labour and service described in Chapter 12, the relevance of the conditions and guarantees set out in Articles 4 to 24 of the Convention and, most importantly, the obligations of the Government under Articles 1 and 25 of the Convention with regard to national practice.

(1) Requisition of labour

480. System of call-up and variations. As indicated in Part B of Chapter 12 (Endnote 826) and confirmed by the evidence set out in Part C of Chapter 12, (Endnote 827) a general pattern is apparent in the methods used by the authorities across the country to requisition labour:

-- written and sometimes oral orders from higher administrative authorities or the military are received by the village head or by ward administration officials;

-- these orders either specify the number of persons to be provided, or the amount of work to be completed by residents;

-- the work may be for portering, military camp work, other work in support of the military, work on agricultural, logging and other production projects undertaken by the authorities, the construction and maintenance of roads, railways and bridges, other infrastructure work or other general urban work;

-- it is for the village head or the ward administration officials to make the necessary arrangements by instructing a certain number of households to provide the labour required, rounding up people, sending them as a punishment for some minor offence or holding a "lottery" to choose which of the residents have to go. (Endnote 828) In cases varying from this general pattern, persons are directly rounded up by troops, without recourse to the village head or ward administration officials. (Endnote 829) Whatever the method used, the Commission's finding on the evidence is that, with the only exception of substitutes occasionally hired by households or individuals called up to contribute labour, those required to perform work or service have not offered themselves voluntarily for that work or service.

481. Copies of several hundred orders addressed to the village head or ward administration officials were submitted to the Commission; (Endnote 830) none of these make any reference to powers under the Village Act or the Towns Act (Endnote 831) or under any other legislation. Nevertheless, the machinery used for the requisition of the labour and services of residents, as described in Chapter 12 and referred to above, generally follows the pattern laid down in the Village Act and the Towns Act -- with the notable exception of cases in which civilians are directly rounded up by troops for portering, be it in an organized or random fashion. (Endnote 832)

482. "Menace of any penalty". (Endnote 833) As indicated above, (Endnote 834) orders for the requisition of labour or services do not make reference to powers under the Village Act or the Towns Act or any other legislation. Neither do they specifically refer to the penalties laid down in section 12 of the Village Act and section 9A of the Towns Act for failure to comply with a requisition, (Endnote 835) although a few of the orders that were submitted to the Commission refer in general terms to punishment under the legislation in force. (Endnote 836) However, as indicated in Part B of Chapter 12 (Endnote 837) and confirmed by the evidence set out in Part C of Chapter 12, (Endnote 838) the written orders to provide porters and labourers which are sent to village heads by the local military or civil administration typically contain some overt or implied threat to anyone refusing to comply. (Endnote 839) Penalties and reprisals imposed in practice for failing to comply with labour demands are very harsh and include physical abuse, (Endnote 840) beatings, (Endnote 841) torture, (Endnote 842) rape (Endnote 843) and murder. (Endnote 844) Also, in order to be exempted from labour assignments given to them, people have to pay sums of money, (Endnote 845) and likewise people directly rounded up by troops for portering may obtain their release only by paying a substantial sum of money. (Endnote 846) Thus, the labour and services imposed in practice on the civilian population by formal requisition or direct round-up, as evidenced in Chapter 12, are covered by the definition given in Article 2, paragraph 1, of the Convention, which refers to "all work or service which is exacted from any person under the menace of any penalty (Endnote 847) and for which the said person has not offered himself voluntarily" -- the only exception being labour or services performed by any substitutes hired by some of those called up for labour or services.

483. Prison labour. Besides the requisition or round-up of residents of villages and wards, the evidence reflected in Chapter 12 also points to the use of prison labour for portering (Endnote 848) as well as public works projects. (Endnote 849) The Convention exempts from its scope "any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations". (Endnote 850) Prima facie, these conditions appear to be met where prison labour is used by the authorities. (Endnote 851) However, the findings of the Commission are that in certain cases, assignments given to prisoners shortly before they were due to be released extended beyond the expiration of their sentence. (Endnote 852) In such cases, the work or service exacted from these persons is no longer the consequence of a conviction in a court of law and becomes forced labour under the Convention, (Endnote 853) since they did not volunteer for the assignment and cannot leave it, under the menace of punishment no lesser than that held out to the general population. (Endnote 854)

(2) Requisition of labour for various purposes, considered in the light of the exceptions in Article 2(2)(a), (b), (d) and (e) of the Convention

484. In the following section, the Commission will examine the applicability of the exceptions listed in Article 2(2)(a), (b), (d) and (e) of the Convention to the various types of work or services, reflected in Chapter 12, for which the population is being called up or rounded up.

(a) Portering

485. Portering, done by civilians for the military, is neither "exacted in virtue of compulsory military service laws" nor "part of the normal civic obligations of the citizens of a fully self-governing country", and thus does not come under the exceptions in Article 2(2)(a) or (b) of the Convention.

486. As regards Article 2(2)(d) of the Convention, concerning work or service exacted in cases of emergency, including war, the Commission has noted (Endnote 855) that the concept of emergency under the Convention involves a sudden, unforeseen happening that endangers the existence or well-being of the population and calls for instant countermeasures, which must be strictly limited in duration and to the extent required to meet the danger. While the conflicts between the Myanmar Government and a number of national minorities and other groups over many years may be considered as having taken the form of armed conflicts, the Government itself has stated in 1992 to the International Labour Conference that it was "no longer conducting military campaigns". (Endnote 856) Even while it was, the requisition or round-up of civilians for portering, as reflected in the many testimonies submitted to the Commission, had not been in reaction to a case of emergency, as described above, but was merely the habitual way for the armed forces and paramilitary units to shift to the civilian population the burden of any labour they wished to be done and which otherwise would have to be performed by army personnel. None of the oral testimonies before the Commission concerning portering refers to a situation that would qualify as an emergency under Article 2(2)(d) of the Convention. Since portering for the military would neither come under "minor communal services" as defined in Article 2(2)(e), this pervasive practice is altogether outside the scope of what is admitted by Article 2(2) of the Convention, with the only exception of convicted prisoners required to do portering during the term of their sentence (Article 2(2)(c) of the Convention).

(b) Military camp work and other work in support of the military

487. The work exacted from civilians for the construction, maintenance, repair and cleaning of military camps, for cooking, collecting water or firewood, washing clothes and acting as messengers for the camps is described in paragraphs 351 to 373 above. Other tasks that civilians are forced to perform, such as acting as guides for the military, as human shields, as minesweepers and as sentries are set out in paragraphs 374 to 388. None of this work is "exacted in virtue of compulsory military service laws" and none is "part of the normal civic obligations of the citizens of a fully self-governing country". Thus, the exceptions in Article 2(2)(a) and (b) are not applicable; nor is Article 2(2)(e), dealing with "minor communal services".

488. What has been stated above (Endnote 857) to explain why forced portering does not come under Article 2(2)(d) of the Convention, which concerns work or service exacted in cases of emergency, applies all the more to work exacted from civilians for the construction and servicing of military camps -- work that is unrelated to any emergency in the sense of a sudden, unforeseen happening that endangers the existence or well-being of the population and calls for instant countermeasures. Similarly, most of the services exacted in the way of acting as guides, human shields, minesweepers and sentries are routinely imposed on residents and not related to any sudden, unforeseen happening that calls for instant countermeasures. Moreover, where civilians are forced to act as guides, human shields, minesweepers or sentries for the military, there may be a real danger to the existence or well-being of part of the population, but that is the kind of danger for which the exigencies of the situation would call on the military to protect the civilian population, while the forced labour exacted in Myanmar in such cases shifts the dangerous tasks from the military to the civilian population. This is contrary to the concept of "emergency" expressed in the Convention. In Myanmar, the civilian population is forced to protect the military. Thus, the work imposed on residents for military camps and in support of the military does not come under any of the exceptions in Article 2(2) of the Convention.

(c) Forced conscription

489. Findings of the Commission set out in Chapter 12 (Endnote 858) indicated that there was regular forced recruitment throughout Myanmar, including that of minors, into the Tatmadaw and various militia groups, and that this did not occur pursuant to any compulsory military service laws, but arbitrarily.

490. As indicated above, (Endnote 859) the provisions of the People's Militia Act, as adopted in 1959, which provide for compulsory military service, (Endnote 860) appear covered by the exception in Article 2(2)(a) of the Convention, but the Commission is neither aware of any subsequent modifications of the Act and does not know whether the Act has been brought into force.

491. In view of its insufficient knowledge of the state of the relevant legislation, and in the absence of meaningful evidence gathered directly by the Commission to confirm the factual information submitted concerning forced recruitment, the Commission has not reached a finding on the compatibility or not of any military conscription with the Convention.

(d) Work on agriculture, logging and other production projects

492. According to the findings reached in Chapter 12, villagers, and to a lesser extent urban residents, are forced to work on a variety of projects undertaken by the authorities, in particular the military throughout the country. These projects include cultivation of rice, other food crops, cash crops such as rubber, fish and shrimp farms, kilns for producing bricks, logging and manufacturing activities, which are likely to enable the military either to meet their material needs or produce profit. The military mobilize the Myanmar population, forcing the people to carry out these activities for the military in difficult conditions without any share in the results. (Endnote 861) This forced labour does not correspond to any of the five exceptions from the scope of the Convention listed in Article 2, paragraph 2. (Endnote 862) In particular, it does not come under "minor communal services", inter alia, because it is not "performed by the members of the community in the direct interest of the said community"; (Endnote 863) nor is such labour related to any emergency, i.e. "any circumstance that would endanger the existence or the well-being of the whole or part of the population". (Endnote 864)

(e) Construction and maintenance of roads, railways and bridges

493. As the Commission details in Chapter 12, there is large scale use of forced labour across the whole population on the construction of roads and railways. (Endnote 865) With regard to the cases in which prisoners or members of the armed forces were required to work on such projects, (Endnote 866) the Commission refers to the explanations given above concerning the compatibility or not of such assignments with the Convention. (Endnote 867) As regards the ordinary civilian population which supplies the vast majority of the labour called up for the construction and maintenance of roads, railways and bridges, and leaving aside the cases in which freely employed workers were employed on such work, (Endnote 868) their call-up for such work comes under the definition of forced or compulsory labour in the Convention (Endnote 869) and needs to be examined in the light of the exceptions provided for in Article 2, paragraph 2, of the Convention. (Endnote 870)

494. The requisition of the population for the construction and maintenance of roads, railways and bridges does not come under the exceptions concerning compulsory military service (Article 2(2)(a) of the Convention), normal civic obligations of the citizens of a fully self-governing country (Article 2(2)(b)), prison labour (Article 2(2)(c)) or emergency work required by an event endangering the existence or the well-being of the whole or part of the population (Article 2(2)(d)). Neither does the construction or maintenance of railway lines come under "minor communal services" (Article 2(2)(e) of the Convention). (Endnote 871) This follows from the sheer size of the projects, (Endnote 872) which turn upon national or regional needs, rather than communal interests, from the numbers of workers and workdays involved, (Endnote 873) the distance between the worksite and the workers' villages (Endnote 874) as well as from the absence of consultation. (Endnote 875)

495. Similarly, with regard to the construction and maintenance of roads and bridges, the Commission has reached the following conclusions on the evidence before it, in the light of the criteria in Article 2(2)(e) of the Convention which determine the limits of the exception for "minor communal services". (Endnote 876) The Commission, as set out in Chapter 12, found that forced labour was used on the construction or improvement of major roads linking towns in many parts of the country as well as the construction of extensive networks of roads between towns and villages, particularly in areas recently occupied by the military after offensives against opposition groups, or roads linking army camps to these networks or to one another, and the building of roads to sites of (forced) relocation. (Endnote 877) Call-up of labour for these works places a heavy burden on the population, all the more since roads often have to be repaired or completely rebuilt after every rainy season. (Endnote 878)

496. Thus, the findings of fact set out in Chapter 12 regarding the construction and maintenance of roads and related infrastructure show that the work is neither "minor" nor turns upon the interests of a local community, but that it is imposed either in the wider interests of national or regional development, or for the specific needs of the military. Moreover, roads built or renovated are reserved for the exclusive use of the authorities, (Endnote 879) and in the view of those forced to work on such projects, they would not benefit from them, in part because local forms of transport (such as bullock carts) are not permitted to use these roads, built for motor vehicles, which the vast majority of villagers do not own. (Endnote 880) Finally, the work is imposed by the military, without consultation of the local communities in regard to the need for such services, (Endnote 881) as required in Article 2(2)(e) of the Convention. The Commission concludes that by all criteria that are applicable under the Convention, the exaction of labour throughout Myanmar for the construction and maintenance of roads and bridges, as well as railway lines, does not come under any of the exceptions in Article 2, paragraph 2, of the Convention.

(f) Other infrastructure work

497. In section 7 of Chapter 12 of the present report, the Commission has set out its findings (Endnote 882) concerning a range of infrastructure projects (beyond the construction of roads, railways and bridges) for which people across Myanmar were forced to contribute their labour. What has been stated above for roads, railways and associated infrastructure (Endnote 883) also applies to these projects. There is no basis for linking them to the exceptions in the Convention concerning military service, normal civic obligations, prison labour or emergencies (Article 2(2)(e) to (d)). The applicability or not of the exception concerning minor communal services in Article 2(2)(e) (Endnote 884) will be considered in the following paragraphs for the various types of work involved.

498. As regards the use of great numbers of forced labourers on major projects for the building and repair of dams, (Endnote 885) hydroelectric power stations, (Endnote 886) the digging of a canal linking two townships, (Endnote 887) irrigation projects, (Endnote 888) the construction of airports, (Endnote 889) or work on electricity lines linking one major village to a town, (Endnote 890) the size of these works or the large number of people or the geographical spread of the call-up or a combination of all these means that all these projects go far beyond the scope of "minor communal services", as defined in Article 2(2)(e) of the Convention.

499. Also, the call-up of large numbers of workers (including non-Buddhists) over four years to build a Buddha museum in the capital city of Rakhine State (Endnote 891) and the use of forced labour for the excavation and restoration of a palace, a site of significant historical importance, or the cleaning of another major palace of national importance and the dredging of its moat, (Endnote 892) or for the building of a 30-mile fence in Kachin State, (Endnote 893) or the building of a stadium and construction of local roads for a national Student Sport Festival held each year in a different town, (Endnote 894) all exceed the purview of minor communal services and turn upon the needs or interests of a community that is different from, and wider than, that to which the persons called up belong.

500. Similarly, the forced transport of logs for telephone line poles to and from a river by people from different villages, (Endnote 895) the construction of helipads (Endnote 896) and hotels, (Endnote 897) the call-up of Rohingya residents to build new villages for Buddhist Rakhines, (Endnote 898) the call-up of labour, including that of non-Buddhists, for the construction and renovation of pagodas and the construction of a monastery, (Endnote 899) are all performed in the direct interests of persons, entities or wider communities that cannot be identified with the communities to which those doing the work belong.

501. Finally, the building of a new primary school or clinic in a village, (Endnote 900) the digging of drainage trenches in a town, (Endnote 901) or the building of a public toilet in a village, (Endnote 902) appear to be performed by members of the community in the direct interest of the community. But the call-up of persons once a week or three times a month, for one or two days, for digging drainage trenches (Endnote 903) by far exceeds the scope of "minor" communal services, which must relate primarily to maintenance work and only in exceptional cases to the building of new facilities (Endnote 904) and should not normally exceed a few days per year. Also, these criteria are not met where persons required to build a new school are simultaneously called upon to perform other forced labour. (Endnote 905) As for the building of a public toilet in a village, which would appear to come undisputably under "minor communal services", the authoritarian manner in which the villagers were ordered to do the work (Endnote 906) follows the routine of the military authorities that does not include any consultation of the members of the community or their direct representatives in regard to the need for the services in question and thus violates the prerequisites of Article 2(2)(e) of the Convention.

(g) General work

502. Where urban residents are called up to carry out regular tasks such as cleaning and beautifying public areas, roads, the school and hospital compound, the area around a lake or at an army camp, (Endnote 907) the criteria set out in section (f) above also apply: while cleaning an army camp would not be performed in the direct interest of those called up to do the work, most of these other tasks might by their nature and purpose come within the purview of "minor communal services". But the call-up of one person per household for one day per weekend for such work (Endnote 908) exceeds by far the boundaries of "minor communal services", which should not normally involve more than a few days' work per year, (Endnote 909) and the apparent absence of any consultation of those concerned or their direct representatives also falls short of the standards of Article 2(2)(e) of the Convention.

(3) Requisition of labour, considered in the light of the prohibitions in Article 4 et seq. of the Convention

(a) Residual relevance of Article 4 et seq. of the Convention

503. In its observations on the complaint, the Government has not invoked Article 1(2) of the Convention, which allowed for recourse to forced or compulsory labour during a transitional period, subject to the conditions and guarantees provided in the Convention. (Endnote 910) As indicated above, (Endnote 911) use of a form of forced or compulsory labour falling within the scope of the Convention as defined in Article 2 may no longer be justified by invoking observance of the provisions of Article 1, paragraph 2, and Articles 4 to 24, although the absolute prohibitions contained in these provisions remain binding upon the States having ratified the Convention. In this regard, the Commission noted that the wide powers to requisition labour and services laid down in the Village Act and Towns Act are incompatible not only with the obligation to suppress the use of forced or compulsory labour under Article 1, paragraph 1, read together with Article 2 of the Convention, but even with the provisions of Articles 9 to 14 and 17 to 19 of the Convention. (Endnote 912) The information provided to, and evidence gathered by, the Commission shows that national practice as set out in Chapter 12 likewise violates both the obligation to suppress the use of forced and compulsory labour (Endnote 913) and specific prohibitions contained in Article 4 et seq. of the Convention.

(b) Violation of specific prohibitions

(i) Imposition of forced or compulsory labour for private benefit

504. To the extent that the produce of, or income generated through, forced labour on projects undertaken by the military for the cultivation of rice, other food crops, or cash crops such as rubber, on shrimp farms, brick kilns and logging activities goes to individuals within or outside the military unit concerned, (Endnote 914) or that forced labour is used by private contractors (Endnote 915) or on the construction of hotels owned by private interests, (Endnote 916) the imposition of forced labour not only violates the obligation to suppress the use of forced or compulsory labour (Endnote 917) but also the specific prohibition to impose or permit the imposition of forced or compulsory labour for the benefit of private individuals, companies or associations, contained in Article 4, paragraph 1, of the Convention.

505. In their supplementary evidence submitted by a letter dated 31 October 1996, the complainants have alleged "that people living in the vicinity of the (Yadana) gas pipeline route are regularly forced to work (on the) construction of the pipeline route itself, and on related infrastructure", explaining that "Work on the pipeline route has mainly consisted of clearing the jungle by hand. Related infrastructure work has included construction of barracks in the area to house SLORC battalions moved into the region to provide security for the pipeline." (Endnote 918)

506. As regards the allegations regarding the ground clearance work mentioned in paragraph 505, the Commission refers to its findings concerning the facts set out in paragraph 452 above, where it indicated that, since the Commission was denied access to Myanmar to supplement its evidence, no finding on this matter could be made.

507. As regards the construction of barracks for military battalions in the region of the pipeline, the Commission considers that even if the battalions are in the region to guard the pipeline, in the absence of further information concerning the security arrangements made between the Government and the private company or companies involved in the pipeline project, forced labour used for the construction of military barracks cannot prima facie be held to be imposed for private benefit in the strict sense of Article 4 of the present Convention.

508. Construction of the Ye-Dawei (Tavoy) railway was also mentioned by the complainants in connection with the installation of the Yadana gas pipeline (Endnote 919) while such a connection was denied by TOTAL. (Endnote 920) The Commission considers that the use of forced labour for the construction of the Ye-Dawei (Tavoy) railway (Endnote 921) does not come under Article 4 of the Convention, it being understood that this railway is a state undertaking, whether or not the private companies involved in the Yadana project are among its eventual customers. (Endnote 922)

509. Finally, as indicated in the Commission's findings concerning the facts, the Commission, having been denied access to Myanmar, was unable to make a finding as to whether TOTAL, companies working for TOTAL or the Yadana gas pipeline project were the beneficiaries of those helipads built in the region of the Yadana gas pipeline for which there is information that they were constructed with forced labour. (Endnote 923)

510. Whether or not the forced labour used on different worksites considered in paragraphs 505 to 509 above was imposed for private benefit in the sense of Article 4 of the Convention, the use of forced labour constitutes a breach of the obligation of the Government to suppress the use of forced or compulsory labour in all its forms. (Endnote 924)

(ii) Exaction of forced or compulsory labour from women, children, elderly people and disabled persons

511. In violation of the absolute prohibition in Article 11, paragraph 1, of the Convention, forced or compulsory labour is widely imposed on women, (Endnote 925) including pregnant women and nursing mothers, (Endnote 926) children below the age of 18 (Endnote 927) who may be as young as 12 (Endnote 928) or 10 years (Endnote 929) of age and who would otherwise be at school (Endnote 930) and persons above the age of 45 (Endnote 931) as well as persons otherwise unfit for work, (Endnote 932) for portering, (Endnote 933) messenger service, (Endnote 934) camp building, (Endnote 935) sweeping roads to detect mines, (Endnote 936) sentry duty, (Endnote 937) building roads and railways (Endnote 938) and other infrastructure works. (Endnote 939)

(iii) Denial of remuneration and compensation

512. While Article 14, paragraph 1 of the Convention provided for "remuneration in cash at rates not less than those prevailing for similar kinds of work", forced labourers in Myanmar are paid only in exceptional circumstances (Endnote 940) and then below market rates. (Endnote 941) Persons serving as porters are in fact never paid, (Endnote 942) except when hired as substitutes by those actually called up, (Endnote 943) and, rather than being paid, some pay to be exempted from serving. (Endnote 944) Those doing forced labour for the building or maintenance of military camps not only are not paid, neither for their work nor for any land confiscated from them, (Endnote 945) but even have to bring the necessary materials such as wood, plaster or cement, (Endnote 946) and again, some of those called up to pay in order to be exempted, or hire replacements. (Endnote 947) Persons called up to perform guard duty (Endnote 948) and villagers forced to work on agriculture, logging and other production projects (Endnote 949) are not remunerated in any way, people forced to work on roads and railways are not normally paid, only in exceptional circumstances and then below market rates, (Endnote 950) and workers called up for other infrastructure projects are not paid either. (Endnote 951) Likewise, compensation for death or injury, required by Article 15 of the Convention, appears to be minimal in the case of porters (whose families are not normally notified) (Endnote 952) and not to be given in most cases where workers are injured on road or railway building projects. (Endnote 953)

(iv) Compulsory cultivation

513. Article 19(1) of the Convention prohibits the recourse to compulsory cultivation otherwise than "as a method of precaution against famine or a deficiency of food supplies, and always under the condition that the food shall remain the property of the individuals or the community producing it". In Myanmar, villagers are not only forced by the military to grow rice and other food crops in the absence of a risk of famine, but they are also compelled to grow and harvest cash crops, and in either case the produce is used or sold by the military and never remains the property of the individuals or the community producing it. (Endnote 954)

(4) Punishment of the illegal exaction of forced or compulsory labour

514. Under Article 25 of the Convention, "The illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and it shall be an obligation on any Member ratifying this Convention to ensure that the penalties imposed by law are really adequate and are strictly enforced". As indicated above, it appears that section 374 of the Penal Code, which provides for the punishment of those unlawfully compelling any person to labour against the will of that person, (Endnote 955) is not being applied in practice, and persons exacting forced labour in Myanmar are not being punished. (Endnote 956) In so far as some of the forced or compulsory labour exacted in violation of the Convention may be imposed in conformity with the provisions of the Village Act or the Towns Act that are themselves contrary to the Convention, (Endnote 957) the necessary amendments to those provisions of the Village Act or Towns Act may have to be brought into force before the corresponding exaction of forced or compulsory labour becomes "unlawful" in national law and punishable under article 374 of the Penal Code. (Endnote 958) However, the provisions of the Village Act and the Towns Act authorizing recourse to compulsory labour had at some stage been declared obsolete (Endnote 959) and are in practice never invoked when imposing forced or compulsory labour. (Endnote 960) Moreover, there are a number of instances of exaction of forced labour, in particular where people are directly rounded up by the military for compulsory service without a requisition of the village head or ward authorities, (Endnote 961) which even under the very wide provisions of the Village Act and the Towns Act appear unlawful in national law and should have given rise already to prosecution under article 374 of the Penal Code. The lack of enforcement in practice of article 374 of the Penal Code violates the obligations of Myanmar under Article 25 of the Convention.

Conclusions

Conclusions and recommendations

14. Conclusions and recommendations

515. Before setting out its conclusions and recommendations, the Commission wishes to address two preliminary questions which relate to the lack of adequate participation by the Government of Myanmar in the proceedings and the Government's claim that the work of the Commission, and particularly the planned visit to Myanmar, constitute interference in the internal affairs of the country. (Endnote 962)

(1) Preliminary questions

516. After examining the information submitted by the parties, (Endnote 963) during its First Session, held in June 1997, the Commission invited the Government of Myanmar to communicate before 30 September 1997 any written statement it might wish to present, as well as the names and description of the witnesses which it wished to be heard during the hearings held from 17-20 and 25-26 November 1997. The Commission also requested the Government of Myanmar to give an assurance that it would not obstruct the attendance before the Commission of the witnesses called by the parties and that no sanction or prejudice to these witnesses and their families would be incurred as a consequence of their participation in the work of the Commission. Finally, the Government was also requested to designate the representative or representatives responsible for acting on its behalf before the Commission and for dealing with all relevant matters which might arise at the various stages of its work.

517. In a communication dated 10 November 1997, the Government of Myanmar informed the Commission that it was unable to provide within the time-limits established the names of the witnesses that it wished to be heard. Moreover, the Government did not appoint its representative to act before the Commission; nor did it provide the assurance requested by the Commission relating to the protection of witnesses and their families against reprisals.

518. The Commission's hearings were held without the benefit of the presence of the Government of Myanmar, although it had been duly informed of the dates on which they would be held, and the information received from the complainants and from other sources was transmitted to it in due time. (Endnote 964) In this respect, the Commission concluded that the Government of Myanmar had abstained in full knowledge that it was not availing itself of its right to be present at the hearings. In these circumstances and considering the time that had elapsed since the filing of the complaint, the Commission considered that it had to proceed with its work in order to ensure that the complaint was examined expeditiously, avoiding all undue delay and thereby guaranteeing a fair procedure. (Endnote 965)

519. Following that session, the Commission considered that it would be useful for it to visit Myanmar to supplement the information in its possession and it sent a letter to this effect to the Government of Myanmar on 28 November 1997. On 12 December, the Government of Myanmar informed the Director-General of the ILO that it could not authorize a visit by the Commission of Inquiry, on the grounds that, in its opinion, such a visit would not really contribute to resolving the matter and would be an interference in the internal affairs of the country.

520. With regard to the alleged interference in the internal affairs of the country, the Commission takes the view, as was done by a previous Commission of Inquiry, (Endnote 966) that by virtue of its Constitution the ILO was established to improve conditions of labour and that it follows that the matters dealt with by the Organization no longer fall within the exclusive sphere of competence of States (domaine réservé). Therefore, the action taken by the Organization in this case, namely the institution of a Commission of Inquiry with full fact-finding and investigative powers, cannot be considered to be undue interference in internal affairs, since it falls precisely within the terms of reference that the ILO has received from its Members with a view to attaining the aims assigned to it. Moreover, the establishment of such a Commission of Inquiry by the ILO is explicitly provided for in the Constitution of the ILO and is only possible in cases in which the Convention in question has been ratified by the State against which the complaint is made. (Endnote 967) Indeed, once a State has by a free and sovereign decision, not only joined the ILO but also ratified an international labour Convention, neither the establishment of a Commission of Inquiry nor its functioning are subject to the agreement or cooperation of the State concerned.

521. The objection based on undue interference in the internal affairs of Myanmar is thus devoid of any legal validity, particularly as article 27 of the Constitution of the ILO includes the undertaking by each member State to "place at the disposal of the Commission all the information in (its) possession which bears upon the subject-matter of the complaint". This provision clearly shows that member States, and a fortiori, the State which is the subject of the complaint, are under indeed an obligation to cooperate with the procedure and cannot, by a refusal to cooperate, prevent the functioning of the procedure.

522. The question nevertheless arises whether the non-cooperation of the Government of Myanmar has in practice had a bearing on the capacity of the Commission to establish the facts of the present case.

523. The Commission has sent voluminous documentation which it received since the beginning of the procedure to the Government for comment. It thus expected the Government of Myanmar to participate in the procedure, in particular by placing at its disposal information as to the facts and the law which would have facilitated its assessment of the situation and by giving it the possibility to visit Myanmar to meet both officials of the Government and other persons able to provide relevant information. However, in the absence of such cooperation, all information that the Government of Myanmar has provided to the Commission has been taken into account as carefully as possible, as well as the positions that the Government has adopted up to June 1996 before other ILO bodies, in particular, the Committee of Experts on the Application of Conventions and Recommendations, the Committee on the Application of Standards of the ILC and the Committee set up to consider the representation made by the International Confederation of Free Trade Unions (ICFTU) in 1993 under article 24 of the ILO Constitution alleging the non-observance of the Convention by Myanmar. (Endnote 968) The Commission also took into account the information provided in the very substantial communications that it received and the numerous testimonies of persons with direct and recent experience of the situation in Myanmar as it relates to forced labour. In this context, the Commission considers that it had at its disposal factual information that was amply sufficient to enable it to make a precise assessment of the situation as a whole and to formulate its conclusions and make the recommendations required by the situation in relation to the allegations made in the complaint and the provisions of the Forced Labour Convention, 1930 (No. 29).

(2) Terms of reference of the Commission

524. By a letter dated 20 June 1996, 25 Workers' delegates presented a complaint under article 26 of the Constitution against the Government of Myanmar for non-observance of the Forced Labour Convention, 1930 (No. 29), which it ratified on 4 March 1995 and which came into force one year later.

525. In March 1997, the Governing Body set up a Commission of Inquiry in order to make an objective assessment of the situation raised in the complaint. On the same occasion, it appointed its members who, chosen for their impartiality and integrity, undertook in a solemn declaration, equivalent to that made by judges of the International Court of Justice, to carry out their tasks and exercise their powers "honourably, faithfully, impartially and conscientiously". (Endnote 969)

526. Under the terms of article 28 of the Constitution of the ILO, the Commission should prepare a report embodying its findings on all questions of fact relevant to determining the issue between the parties and containing such recommendations as it may think proper concerning the steps which should be taken and the time within which they should be taken. In order to give full effect to its terms of reference, the Commission considered that its role was not to be confined to an examination of the information furnished by the parties themselves or in support of their contentions, but that the Commission should take all necessary measures to obtain as complete and objective information as possible on the matters at issue. (Endnote 970)

527. It is therefore in this spirit of independence and impartiality that the Commission states its conclusions and presents recommendations as to the steps which should be taken to remedy the situation on those points on which it does not consider it to be satisfactory.

(3) Conclusions on the substance of the case

528. There is abundant evidence before the Commission showing the pervasive use of forced labour imposed on the civilian population throughout Myanmar by the authorities and the military for portering, (Endnote 971) the construction, maintenance and servicing of military camps, (Endnote 972) other work in support of the military, (Endnote 973) work on agriculture, logging and other production projects undertaken by the authorities or the military, (Endnote 974) sometimes for the profit of private individuals, (Endnote 975) the construction and maintenance of roads, railways and bridges, (Endnote 976) other infrastructure work (Endnote 977) and a range of other tasks, (Endnote 978) none of which comes under any of the exceptions listed in Article 2(2) of the Convention. (Endnote 979)

529. The call-up of labour is provided for in very wide terms under sections 8(1)(g)(n) and (o), 11(d) and 12 of the Village Act and sections 9(b) and 9A of the Towns Act, which are incompatible with the Convention. (Endnote 980) The procedure used in practice often follows the pattern of those provisions, in relying on the village head or ward authorities for requisitioning the labour that any military or government officer may order them to supply; (Endnote 981) but the provisions of the Village Act and the Towns Act were never actually referred to in those orders for the call-up of forced labourers that were submitted to the Commission; (Endnote 982) it thus appears that unfettered powers of military and government officers to exact forced labour from the civilian population are taken for granted, without coordination among different demands made on the same population, (Endnote 983) and people are also frequently rounded up directly by the military for forced labour, bypassing the local authorities. (Endnote 984)

530. Failure to comply with a call-up for labour is punishable under the Village Act with a fine or imprisonment for a term not exceeding one month, or both, and under the Towns Act, with a fine. (Endnote 985) In actual practice, the manifold exactions of forced labour often give rise to the extortion of money in exchange for a temporary alleviation of the burden, (Endnote 986) but also to threats to the life and security (Endnote 987) and extrajudicial punishment of those unwilling, slow or unable to comply with a demand for forced labour; such punishment or reprisals range from money demands (Endnote 988) to physical abuse, (Endnote 989) beatings, (Endnote 990) torture, (Endnote 991) rape (Endnote 992) and murder. (Endnote 993)

531. Forced labour in Myanmar is widely performed by women, (Endnote 994) children (Endnote 995) and elderly persons (Endnote 996) as well as persons otherwise unfit for work. (Endnote 997)

532. Forced labour in Myanmar is almost never remunerated (Endnote 998) nor compensated, (Endnote 999) secret directives notwithstanding, (Endnote 1000) but on the contrary often goes hand in hand with the exaction of money, (Endnote 1001) food (Endnote 1002) and other supplies (Endnote 1003) as well from the civilian population.

533. Forced labour is a heavy burden on the general population in Myanmar, preventing farmers from tending to the needs of their holdings and children from attending school; it falls most heavily on landless labourers and the poorer sections of the population, (Endnote 1004) which depend on hiring out their labour for subsistence and generally have no means to comply with various money demands made by the authorities in lieu of, or over and above, the exaction of forced labour. (Endnote 1005) The impossibility of making a living because of the amount of forced labour exacted is a frequent reason for fleeing the country. (Endnote 1006)

534. The burden of forced labour also appears to be particularly great for non-Burman ethnic groups, (Endnote 1007) especially in areas where there is a strong military presence, (Endnote 1008) and for the Muslim minority, including the Rohingyas. (Endnote 1009)

535. All the information and evidence before the Commission shows utter disregard by the authorities for the safety and health as well as the basic needs of the people performing forced or compulsory labour. Porters, including women, are often sent ahead in particularly dangerous situations as in suspected minefields, and many are killed or injured this way. (Endnote 1010) Porters are rarely given medical treatment of any kind; (Endnote 1011) injuries to shoulders, backs and feet are frequent, (Endnote 1012) but medical treatment is minimal (Endnote 1013) or non-existent (Endnote 1014) and some sick or injured are left behind in the jungle. (Endnote 1015) Similarly, on road building projects, injuries are in most cases not treated, and deaths from sickness and work accidents are frequent on some projects. (Endnote 1016) Forced labourers, including those sick or injured, are frequently beaten or otherwise physically abused by soldiers, resulting in serious injuries; (Endnote 1017) some are killed, (Endnote 1018) and women performing compulsory labour are raped or otherwise sexually abused by soldiers. (Endnote 1019) Forced labourers are, in most cases, not supplied with food (Endnote 1020) -- they sometimes even have to bring food, water, bamboo and wood to the military; (Endnote 1021) porters may receive minimal rations of rotten rice, (Endnote 1022) but be prevented from drinking-water. (Endnote 1023) No clothing or adequate footwear is provided to porters, including those rounded up without prior warning. (Endnote 1024) At night, porters are kept in bunkers or have to sleep in the open, without shelter or blankets provided, even in cold or wet situations, often tied together in groups. (Endnote 1025) Forced labourers on road and railway construction have to make their own arrangements for shelter as well as all other basic needs. (Endnote 1026)

536. In conclusion, the obligation under Article 1, paragraph 1, of the Convention to suppress the use of forced or compulsory labour is violated in Myanmar in national law, in particular by the Village Act and the Towns Act, as well as in actual practice in a widespread and systematic manner, with total disregard for the human dignity, safety and health and basic needs of the people of Myanmar.

537. Concurrently, the Government violates its obligation under Article 25 of the Convention to ensure that the penalties imposed by law for the illegal exaction of forced or compulsory labour are both really adequate and strictly enforced. (Endnote 1027) While section 374 of the Penal Code provides for the punishment of those unlawfully compelling any person to labour against the will of that person, (Endnote 1028) that provision does not appear to be ever applied in practice, (Endnote 1029) even where the methods used for rounding up people do not follow the provisions of the Village Act or the Towns Act, which are in any event never referred to in practice. (Endnote 1030)

538. A State which supports, instigates, accepts or tolerates forced labour on its territory commits a wrongful act and engages its responsibility for the violation of a peremptory norm in international law. (Endnote 1031) Whatever may be the position in national law with regard to the exaction of forced or compulsory labour and the punishment of those responsible for it, any person who violates the prohibition of recourse to forced labour under the Convention is guilty of an international crime that is also, if committed in a widespread or systematic manner, a crime against humanity. (Endnote 1032)

Recommendations

539. In view of the Government's flagrant and persistent failure to comply with the Convention, the Commission urges the Government to take the necessary steps to ensure:

(a) that the relevant legislative texts, in particular the Village Act and the Towns Act, be brought into line with the Forced Labour Convention, 1930 (No. 29) as already requested by the Committee of Experts on the Application of Conventions and Recommendations and promised by the Government for over 30 years, (Endnote 1033) and again announced in the Government's observations on the complaint. (Endnote 1034) This should be done without further delay and completed at the very latest by 1 May 1999;

(b) that in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military. This is all the more important since the powers to impose compulsory labour appear to be taken for granted, without any reference to the Village Act or Towns Act. (Endnote 1035) Thus, besides amending the legislation, concrete action needs to be taken immediately for each and every of the many fields of forced labour examined in Chapters 12 and 13 above to stop the present practice. This must not be done by secret directives, which are against the rule of law and have been ineffective, but through public acts of the Executive promulgated and made known to all levels of the military and to the whole population. Also, action must not be limited to the issue of wage payment; it must ensure that nobody is compelled to work against his or her will. Nonetheless, the budgeting of adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour is also required;

(c) that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced or compulsory labour (Endnote 1036) be strictly enforced, in conformity with Article 25 of the Convention. This requires thorough investigation, prosecution and adequate punishment of those found guilty. As pointed out in 1994 by the Governing Body committee set up to consider the representation made by the ICFTU under article 24 of the ILO Constitution, alleging non-observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), (Endnote 1037) the penal prosecution of those resorting to coercion appeared all the more important since the blurring of the borderline between compulsory and voluntary labour, recurrent throughout the Government's statements to the committee, was all the more likely to occur in actual recruitment by local or military officials. The power to impose compulsory labour will not cease to be taken for granted unless those used to exercising it are actually brought to face criminal responsibility.

540. The recommendations made by the Commission require action to be taken by the Government of Myanmar without delay. The task of the Commission of Inquiry is completed by the signature of its report, but it is desirable that the International Labour Organization should be kept informed of the progress made in giving effect to the recommendations of the Commission. The Commission therefore recommends that the Government of Myanmar should indicate regularly in its reports under article 22 of the Constitution of the International Labour Organization concerning the measures taken by it to give effect to the provisions of the Forced Labour Convention, 1930 (No. 29), the action taken during the period under review to give effect to the recommendations contained in the present report. In addition, the Government may wish to include in its reports information on the state of national law and practice with regard to compulsory military service. (Endnote 1038)

(5) Concluding observations

541. The Commission notes that in its resolution 52/137 adopted 12 December 1997, the General Assembly of the United Nations "urges the Government of Myanmar, in conformity with its assurances given at various times, to take all necessary steps towards the restoration of democracy in accordance with the will of the people as expressed in the democratic elections held in 1990 and to ensure that political parties and non-governmental organizations can function freely". (Endnote 1039) The Commission further notes that in his report on the situation of human rights in Myanmar submitted 15 January 1998, the Special Rapporteur, Mr. Rajsoomer Lallah, recommended that "steps should also be taken to restore the independence of the judiciary and to subject the executive to the rule of law and render unjust and unjustifiable actions justiciable". (Endnote 1040)

542. The Commission considers that the impunity with which government officials, in particular the military, treat the civilian population as an unlimited pool of unpaid forced labourers and servants at their disposal is part of a political system built on the use of force and intimidation to deny the people of Myanmar democracy and the rule of law. The experience of the past years tends to prove that the establishment of a government freely chosen by the people and the submission of all public authorities to the rule of law are, in practice, indispensable prerequisites for the suppression of forced labour in Myanmar.

543. This report reveals a saga of untold misery and suffering, oppression and exploitation of large sections of the population inhabiting Myanmar by the Government, military and other public officers. It is a story of gross denial of human rights to which the people of Myanmar have been subjected particularly since 1988 and from which they find no escape except fleeing from the country. The Government, the military and the administration seem oblivious to the human rights of the people and are trampling upon them with impunity. Their actions gravely offend human dignity and have debasing effect on the civil society. History shows that where human rights are denied or violated in any part of the world, it is bound to have a chain effect on the other parts of the world and it is therefore of vital interest to the international community that such denial and violation of human rights must be effaced from wherever it occurs. Every man, woman and child must be able to live with human dignity and become an equal participant with others in the enjoyment of the fruits of freedom, liberty and development. The Commission hopes and trusts that in the near future the old order will change, yielding place to the new where everyone in Myanmar will have an opportunity to live with human dignity and to develop his or her full potential in a freely chosen manner and there will be no subjection or enslavement of anyone by others. This can happen only if there is restoration of democracy where people as a whole can wield power for their common good.

Geneva, 2 July 1998.

(Signed) W. Douglas, Chairperson.

P.N. Bhagwati. R.A. Layton.

Having signed this report, the members of the Commission wish to thank Mr. Michel Hansenne, Director-General of the ILO and his staff for the assistance generously given to the Commission in carrying out its mandate.

The Commission is particularly grateful to Mr. André Zenger, Chief of the Application of Standards Branch who took part in all its sessions and accompanied the Commission on its visit to the region and to Mr. Max Kern, a senior official whose great expertise in labour standards was a vital contribution to the Commission's work. The Commission also wishes to thank Ms. Anne-Marie La Rosa, whose mastery of the principles of international law is matched by unusual clarity of thought and expression, and Mr. Richard Horsey whose knowledge of the region and its languages and whose lucidity of expression were so helpful to the Commission.

ANNEX Appendix I

Supplementary evidence submitted by the complainants in October 1996

Supplementary evidence to the complaint under article 26 of the Constitution of the International Labour Organization submitted on 20 June 1996 by the Workers' delegates to the 1996 International Labour Conference against the Government of Myanmar for non-observance of ILO Convention No. 29 (31 October 1996)

Contents

Table of authorities

I.

Summary

II. PRIOR PROCEEDINGS AT THE ILO

III. FINDINGS OF FACT

IV.

Conclusions

V.

Conclusions

Table of authorities

ILO documents

Constitution of the International Labour Organization (1919).

Conference Committee documents: Records of Proceedings

International Labour Conference, 83rd Session, Provisional Record. Report of the Committee on the Application of Standards (Geneva, 1996).

Reports of the Committee of Experts

International Labour Conference, 83rd Session, Report III (Part 4A) Report of the Committee of Experts (Geneva, 1996).

General Surveys of the Committee of Experts concerning forced labour

International Labour Conference, 65th Session, Report III (Part 4A) Report of the Committee of Experts, General Survey of the reports relating to the Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105) (Geneva, 1979).

Governing Body reports

"Child labour", ILO doc. GB.265/2 (Geneva, Mar. 1996).

Other ILO documents

International Labour Conference, 82nd Session, Report III (Part 5) List of Ratifications by Convention and by Country (Geneva, 1995).

UN documents

Reports of the Special Rapporteur on the situation of human rights in Myanmar

Report of the Special Rapporteur on the situation of human rights in Myanmar, 1996, UN doc. E/CN.4/1996/65 (5 Feb. 1996).

Other UN documents

Universal Declaration of Human Rights, UN GA Res. 217A, UN doc. A/810 (1948).

Laws and regulations of Myanmar

Villages Act 1908, printed in Burma Code, Vol. VI (1979) (English and Burmese versions).

Statements of the Government to UN

Statement by His Excellency U Ohn Gyaw, Chairman of the Delegation of the Union of Myanmar to the United Nations, New York (3 Oct. 1995).

International decisions

Nuclear tests cases (Australia v. France) (New Zealand v. France). Judgement of 20 Dec. 1976, ICJ Reports.

Treatises

Nicolas Valticos, International labour law (1979).

Fact-finding reports

Amnesty International

Anti-Slavery International

Article 19

Australian Council for Overseas Aid

Asia Watch

Burma Action Group

EarthRights International and Southeast Asian Information Network

Human Rights Watch/Asia

Images Asia

International Commission of Jurists

Lawyers Committee for Human Rights

US Committee for Refugees

United States Department of State

Other authorities

John Doe I., etc. et. al., v. Unocal Corp. et. al. Docket No. 96-6959 LGB (C.D. Cal.), complaint filed in US Federal Court, 3 Oct. 1996.

I.

Summary

This is presented as supplementary evidence to the complaint under article 26 of the Constitution submitted on 20 June by Workers' delegates to the 1996 International Labour Conference (footnote giving name/country) against the Government of Myanmar for non-observance of Convention No. 29 on Forced Labour (1930) which it ratified in 1955. The ILO's prior proceedings in this matter have included more than 30 years of review by the Committee of Experts, two special paragraphs by the Conference Committee, findings of non-compliance with the Convention by a committee established to examine a representation under article 24 of the ILO Constitution ("Article 24 Committee") and the subsequent adoption of those findings by the Governing Body of the ILO.

A. Factual findings

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

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

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

B. Legal conclusions

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

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

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

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

No transitional period applies to exempt Myanmar from its obligation under Convention No. 29 to suppress forced labour in all its forms. The Committee established by the ILO to review the ICFTU's Article 24 Representation on forced portering in Myanmar determined that no transitional period applied. That finding is amply supported as a matter of fact and law. The 40 years since Myanmar ratified the Convention constitutes more than ample time to make required alterations to law and practice to conform to the Convention's requirements. Moreover, the Government itself has admitted that no transitional period applies; such admissions were made in the article 24 proceeding and recently in its observations made to the United Nations relating to reports of forced labour practices.

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

Based on the presentation of the facts and discussion of the law in this complaint, the complainants urge that the Governing Body establish a Commission of Inquiry to consider the complaint and to report on the situation in Myanmar. The complainants further recommend that, if established, the Commission of Inquiry should insist on procedures that ensure the safety of witnesses and their families. The complainants request that the Commission of Inquiry make factual findings and draw legal conclusions consistent with those in the complaint, and recommend that Myanmar take immediate remedial measures to comply with and respect the terms of Convention No. 29.

II. PRIOR PROCEEDINGS AT THE ILO

Myanmar ratified the ILO Convention concerning Forced or Compulsory Labour, 1930 (No. 29) ("Convention No. 29") on 4 March 1955. (Endnote 1041) Myanmar's compliance with its obligations under Convention No. 29 has been the subject of long-standing comment by the Committee of Experts on the Application of Conventions and Recommendations ("Committee of Experts") and by the International Labour Conference's Committee on the Application of Standards ("Conference Committee"). (Endnote 1042)

A. Review by the Committee of Experts and the Conference Committee

1. The Committee of Experts

For more than 30 years, the Committee of Experts has reviewed Myanmar's compliance under Convention No. 29. In the 1960s, the Committee examined the Government's practices under the Prisons Act, No. 9, 1894, Villages Act 1908 and Towns Act 1907. (Endnote 1043) In 1968, the Government indicated to the Committee that the Villages and Towns Acts were not in use and that it would consider the adoption of new laws to prohibit forced or compulsory labour. It further represented that forced labour was not used for public purposes in the country. (Endnote 1044) Reviews occurred periodically thereafter with no substantial change in the country's law or practice. In 1991, the Committee of Experts received a report from the ICFTU containing detailed allegations about the practice of forced portering, to which the Government failed to respond. (Endnote 1045)

In 1993, the ICFTU lodged a representation under article 24 of the ILO Constitution concerning the practice of forced portering in Myanmar ("Article 24 Representation"). (Endnote 1046) Accordingly the Committee of Experts suspended its examination of this aspect of Myanmar's forced labour practices. The Committee of Experts also sought the Government's comments on forced labour practices other than portering alleged in the report of the Special Rapporteur on the situation of human rights in Myanmar appointed by the United Nations Commission on Human Rights. (Endnote 1047)

In 1995, the Article 24 Committee recommended that the Villages Act 1908 and the Towns Act 1907 be amended or repealed; and that there be necessary follow-up action including strict punishment of those subsequently having recourse to forced labour. The Committee of Experts expressed the hope that the Government would take corrective action, and noted that the powers provided in the Villages Act 1908 and the Towns Act 1907 allow for the exaction of forced labour.

Because the Government of Myanmar had not submitted a report under article 22 of the ILO Constitution, the Committee of Experts addressed the Government's response to the Article 24 Committee that there was no forced labour in Myanmar but rather a widespread cultural tradition of voluntary contributions of labour contemplated by Article 2(2)(e) of Convention No. 29. (Endnote 1048) The Committee noted that the work contemplated must be minor, and that the services must be performed in the direct interest of the community and not relate to the execution of works intended to benefit a wider group". The Committee of Experts indicated that "(t)he construction of a railroad would not appear to meet either of these criteria". The Committee further noted that the continuing existence of the powers provided in the Villages Act 1908 and the Towns Act 1907 made it "difficult to establish that residents performing work at the request of the authorities are doing so voluntarily". (Endnote 1049)

In 1996, the Committee of Experts reiterated its previous findings concerning the Villages Act and the Towns Act and its view that they provide for forced labour within the meaning of Convention No. 29. The Committee of Experts noted with concern the Government's response to the Conference Committee's request in 1995 for remedial action and a detailed report. (Endnote 1050) The Committee further noted that, ever since 1967, the Government had been stating that the Villages Act 1908 and the Towns Act 1907 had fallen into disuse, and that they were to be amended or repealed. The Committee remarked that: "(t)he Government's latest report persists in blurring the distinction between compulsory and voluntary labour and contains no indication whatsoever that concrete measures have been taken to abolish the powers to impose compulsory labour either in law or in practice". (Endnote 1051) The Committee requested the Government of Myanmar to supply full particulars to the International Labour Conference at its 83rd Session in June 1996.

2. The Conference Committee

In the last five years, the Government of Myanmar has been called before the Conference Committee three times concerning its obligations under Convention No. 29. On two of those occasions, its failures to comply have been mentioned in special paragraphs of the Conference Committee's report.

In 1992 the Conference Committee noted that the Government had not supplied its report under article 22 in time, and urged the Government to report to the ILO in the very near future. (Endnote 1052) A Government representative indicated to the Committee that: (1) there was no practice of forced labour in Myanmar; (2) porters who worked for the army did so voluntarily; (3) recruitment of porters was in accordance with section 8(1)(n) of the Villages Act 1908 and section 7(1)(m) of the Towns Act 1907; (4) there were conditions governing recruitment of porters; (5) porters were not mistreated or used in military roles; (6) they were entitled, among other things, to the same medical treatment as soldiers in the event of injury; and (7) comprehensive and elaborate laws effectively prevented the practice of forced labour on the ground.

In 1995, the Conference Committee "called upon the Government to urgently repeal the offensive legal provisions under the Villages Act 1908 and the Towns Act 1907 to bring them into line with the letter and spirit of Convention No. 29, to terminate forced labour practices on the ground, to provide for and award exemplary penalties against those exacting forced labour, and to furnish a detailed report on legislative and practical measures adopted to fall into line with Convention No. 29. The case was mentioned in a special paragraph of the Conference Committee's report (Endnote 1053)

In 1996, the Conference Committee again issued a special paragraph, in which it "once again firmly required the Government formally to abolish and urgently to cancel the legal provisions and to abandon all practices that were contrary to the Convention. The Committee urged the Government to prescribe truly dissuasive sanctions against all those having recourse to forced labour". (Endnote 1054) In a separate special paragraph the Conference Committee noted "with great concern" the case of Myanmar as one of continued failure to eliminate serious deficiencies. (Endnote 1055)

B. The Article 24 Representation

By letter of 25 January 1993, the ICFTU submitted a representation under article 24 of the ILO Constitution alleging non-observance by the Government of Myanmar of Convention No. 29. (Endnote 1056) The Governing Body established a committee to examine the representation, which issued its report on 7 November 1994. (Endnote 1057) The recommendations of the Article 24 Committee were subsequently adopted by the Governing Body, in November 1994. (Endnote 1058)

The ICFTU alleged that the Government of Myanmar had breached Convention No. 29 by institutionalizing "the use of forced labour by military commanders through the (practice of) forced recruitment and abuse of porters". (Endnote 1059) Based on credible reports the ICFTU alleged that men, women and children were routinely rounded up by police and the military to perform portering services under arduous and abusive conditions, including insufficient food, lack of medical care, minesweeping, rape and extrajudicial execution. The ICFTU further alleged that: (1) the practice of forced portering constituted forced or compulsory labour as defined in Convention No. 29; (2) no exceptions in the Convention were applicable; (3) Myanmar was not in any transitional period contemplated by Convention No. 29; (4) none of the guarantees and conditions applying to the practice of forced labour during the transitional period were being met by the Government of Myanmar; and (5) the Government of Myanmar had failed to comply with its obligation under Article 25 of Convention No. 29 to penalize those who exact forced labour from others. (Endnote 1060)

The Government of Myanmar communicated with the Article 24 Committee twice. (Endnote 1061) It asserted that: (1) there was no practice of forced labour or slavery but rather the population voluntarily contributes labour in pursuance of a centuries-old tradition of such voluntary contribution; (2) the military recruits and employs porters to support its campaigns against insurgent groups near the frontiers in accordance with relevant provisions of the Villages Act 1908 and the Towns Act 1907; (3) there was no truth in the varied allegations concerning the abusive nature of portering work and the conditions under which it is performed, and medical care was provided when necessary; and (4) the guarantees concerning the manner of performance of forced labour provided for in Articles 8-16, 18, 23 and 24 of Convention No. 29 were satisfied. (Endnote 1062)

The Article 24 Committee made the following findings and recommendations:

(a) the Villages Act 1908 and the Towns Act 1907 provide for the exaction of forced or compulsory labour under the menace of a penalty in breach of Convention No. 29; (Endnote 1063)

(b) the Government of Myanmar had "supplied no indications that would bring compulsory porterage within the scope of one of the exceptions provided for in Article 2, paragraph 2, of the Convention"; (Endnote 1064)

(c) the Government of Myanmar had not invoked the concept of a transitional period in its responses to the Article 24 Representation. This was consistent with the position it had taken in its reports submitted under article 22 of the ILO Constitution concerning its compliance with its obligations under Convention No. 29. In those reports the Government had consistently stated that both the Villages Act 1908 and the Towns Act 1907 were obsolete colonial era laws, and that the powers they provided were no longer exercised; (Endnote 1065)

(d) compliance with the obligations in Article 25 of Convention No. 29 required the immediate repeal of the relevant provisions of the Villages Act 1908 and the Towns Act 1907, and also penal prosecution of those resorting to coercion of labour. The Article 24 Committee noted that "(t)his appears all the more important since the blurring of the borderline between compulsory and voluntary service labour, recurrent throughout the Government's statements to the Committee, is all the more likely to occur also in actual recruitment by local or military officials". (Endnote 1066)

III. FINDINGS OF FACT

The Union of Myanmar is conducting a widespread practice of forced labour for public purposes as well as for private benefit. Among the public purposes documented in this section are: (1) portering, combat, minesweeping and sexual services for military troops; (2) development and infrastructure projects to the detriment of the general population; and (3) military construction projects. As demonstrated below, the Government of Myanmar uses forced labour for private benefit in order to: (1) promote joint venture developments, including the country's oil and natural gas reserves; (2) encourage private investment in the tourist industry; and (3) benefit the private commercial interests of military members. As discussed in this section, the current law of Myanmar authorizes forced or compulsory labour to be exacted under the pain of penalty. That law overrides any government directive attempting to curb abusive practices relating to forced labour on development projects, and any law making exaction of forced labour a criminal offence.

A. Forced labour for public purposes

1. The Government of Myanmar uses forced labour to perform portering, combat, minesweeping and sexual services for military troops

Military campaigns in Myanmar are characterized by consistent, widespread and systematic use of the civilian population for portering duties. Along with portering, the forced labour duties have typically involved provision of minesweeping, combat and sexual services. One documented study has noted that "(t)he conscription of hundreds of thousands of porters (including from the Burman majority) has been reported in every ethnic minority state and every division of Burma". (Endnote 1067)

The contemporary practice of forced portering in the service of the Myanmar army (in Burmese "Tatmadaw"), has historical links to the time of Japanese occupation and British colonial rule. (Endnote 1068) The Government of Myanmar has variously denied that the practice exists, and claimed that when portering occurs it happens according to strict conditions, according to law, and at the voluntary offering of the people involved in the work. (Endnote 1069) Despite these statements, "the evidence is irrefutable that, in the absence of proper roads or transport, thousands of villagers are forced into carrying arms and supplies for all major military operations". (Endnote 1070) Since 1988, ex-army officers have confirmed that "for most military operations in the war-zones an average of one porter is taken along for each soldier on the mission". (Endnote 1071)

The vast majority of people who have worked as porters are forced to do so through various methods documented and corroborated by independent and reliable sources. (Endnote 1072) Village headmen are frequently notified of the quota of porters they must fill, and are under legal obligation to do so. (Endnote 1073) The only alternative is to pay large sums of money to the local military command, known as "porter fees". Arrest is a common means of obtaining porters, and unless a civilian has enough money to bribe the soldier(s) to let them go, there is no alternative but to work as porters. Apart from these more formal, or organized means of pressing civilians into work as porters, people are commonly rounded up by the local police or the military from public places such as movie theatres, coffee houses, video shows and train stations. They are put into trucks and taken away to serve as porters. In some cases they are taken long distances from where they are seized, in order to discourage them from trying to run away. As noted by the UN Special Rapporteur: "(m)any of the victims of such acts ... are peasants, women, daily wage-earners and other peaceful civilians who do not have enough money to avoid mistreatment by bribing". (Endnote 1074)

Calls into service appear to be arbitrary and widespread. One man explained that he had been arrested frequently to work as a porter, preventing him from carrying out his normal work as a carrier of goods: "In one year I'm taken as porter perhaps ten times, sometimes for ten days, sometimes for two months ...". (Endnote 1075) If the SLORC is conducting a major operation, military commanders will take hundreds or thousands of people to work as porters, depending on their perceived needs. Those needs are calculated mindful of the certainty that many porters will escape as soon as they can, and need to be replaced.

Considerable evidence reveals that men, women, children and the elderly alike are taken to serve as porters, despite claims by the SLORC that there are restrictions and requirements as to which people will be allowed to work as porters and under what conditions. (Endnote 1076) "(T)he army regularly takes porters indiscriminately ... when troops need a large number of porters, they take women aged 15 through 60 as well." (Endnote 1077)

Prisoners are among the civilians who have been pressed into service as porters for SLORC troops. Prisoners are made to work in leg chains and are singled out for especially harsh treatment. (Endnote 1078) Many prisoners who have been taken to work as porters have died at the front lines, often as a result of ill-treatment at the hands of SLORC troops. (Endnote 1079)

Documented reports and individual testimony of the circumstances in which civilians are forced to labour as porters demonstrate the abusive "working" conditions. Porters held in military custody carry loads of foodstuffs, ammunition and weapons that can weigh from 30 to 60 kilograms. They labour for long hours every day, and receive insufficient food, water and rest. (Endnote 1080) They rarely receive medical attention despite a wide range of illness and injury from which they suffer as a result of forced labour, including malaria. Along with disease, porters suffer wounds received during the course of battle or in minesweeping operations, (Endnote 1081) and injuries from the excessive loads they are made to carry. If any of these circumstances prevents porters from being able to continue work, the SLORC troops often abandon them where they collapse from exhaustion, without any medical care or assistance at all. (Endnote 1082)

Many porters suffer beatings and other forms of physical abuse at the hands of SLORC troops, often leaving them with severe injuries. The UN Special Rapporteur on Myanmar considered that some of the most serious human rights violations of which he had been informed occurred in the context of forced portering. (Endnote 1083) Abuses include beatings, (Endnote 1084) extrajudicial and summary executions, (Endnote 1085) and rape, including gang rape, of women who are taken for portering duties. (Endnote 1086)

Beating by soldiers with sticks and rifle butts when a porter cannot continue is commonplace. (Endnote 1087) Porters, who have escaped and been interviewed, have experienced and witnessed beatings. They describe being subjected to "physical abuse and inhumane treatment from the moment of capture ... (most) had been severely beaten ... when they slipped or fell from exhaustion, and all (interviewed) had witnessed the deaths of fellow porters". (Endnote 1088) At night. men and women porters are separated from each other. Many of the women are repeatedly raped by SLORC soldiers, at times in gang fashion. (Endnote 1089)

Porters have commonly been used in military roles, and many die as a result "Interspersed as human mules between soldiers in each marching column, they are thus brought directly into the frontline of the war". (Endnote 1090) Once they have arrived at the frontline, porters are frequently required to perform a number of military tasks. For example, although unarmed themselves, they have been placed at the head of columns to detonate mines and booby traps, and to spring ambushes. As noted by one investigative group, "(a) particularly disturbing aspect of the phenomenon ... concerns the military's practice of sometimes using civilian porters during frontline operations as "human shields'". (Endnote 1091)

Commonly porters are sent as minesweepers to clear paths and fields where mines have been laid. (Endnote 1092) While the use of children as porters is objectionable per se, it is all the more disturbing that the SLORC does not protect children against requirements to perform military duties after conscription as porters. (Endnote 1093)

2. The Government of Myanmar uses forced labour on development and public works projects that are not in the direct interest of the community, and in fact harm community life (Endnote 1094)

(a) Forced labour practices on development projects are widespread and affect hundreds of thousands of civilians

The widespread use of forced labour in Myanmar for development and construction projects touches the lives of a vast number of Myanmar's people, including men, women, children and the elderly. The total number affected reaches into the hundreds of thousands on various projects. (Endnote 1095) Forced labour is used in Myanmar for a wide range of projects, including infrastructure development, and tourist development projects. (Endnote 1096) Typical labour duties include the construction of roads, railway lines and airfields. (Endnote 1097) The military government has also forced many thousands of people to "contribute" their labour to tourist development projects as part of the preparation for and conduct of 1996 as "Visit Myanmar Year". (Endnote 1098)

Prisoners from around Myanmar are also routinely required to work in construction projects. (Endnote 1099) They are made to work on roadbuilding, as well as the breaking of rocks for roadbuilding. Generally prisoners are taken to labour camps near the projects on which they are to work. Conditions in the labour camps are harsh, and the work is difficult. Many prisoners die in the course of this work. There have been reports that political prisoners are among those taken to the labour camps. (Endnote 1100)

(b) Forced labour on development projects is systematic and organized

Forced labour on development projects in Myanmar follows systematic and organized patterns, and the evidence discloses large increases in forced labour in recent times. (Endnote 1101) Although some people have been transported to different parts of the country to work on forced labour projects, "usually the construction work is organized on a village or township basis. For local projects each family (or street or block) is ordered by the district LORC (Law and Order Restoration Council) to provide a specific number of labourers to complete a particular task, such as breaking a quantity of rocks or digging a section of road". (Endnote 1102) As noted by one human rights group, "it is ... usually left to the headman to choose which families will work at which times, on a rotating basis. There is no option to choose not to go; the only alternatives to going are to pay heavy fines ("porter tax') or to flee the area". (Endnote 1103) Funds to pay labourers are rarely available, and almost never reach those who do the work. (Endnote 1104) In cases where villagers have neither fled nor complied with the orders, they have suffered reprisals at the hands of the local SLORC troops. Retribution has included the infliction of beatings and torture upon the village headman, (Endnote 1105) and threats to kill those who do not contribute labour.

(c) Harsh working conditions and human rights abuses are common on development projects

Forced labour on construction projects is itself arduous and exhausting, consisting of manual labour to dig ditches, build embankments, and lay roads, dams and railways. The hours of work are long with little opportunity to rest, and little or no water or food are supplied. Reports suggest that people have been forced to stay overnight at the site of their work, commonly to sleep on the roads they are building, irrespective of the weather conditions. (Endnote 1106) Deprivation of medical care results in disease and other health problems. Many of the forced labour camps are in areas where malaria is rife. (Endnote 1107) In other cases, climatic change has a severe impact on the hill people transported from their home environments. (Endnote 1108)

As with those who are forced to work as porters for the Tatmadaw, gross human rights abuses in the course of forced labour on development projects are routine. (Endnote 1109) The Special Rapporteur on Myanmar has noted that the worst human rights abuses of which he was informed occurred in the course of forced labour on development projects, as well as forced portering. (Endnote 1110) There have been repeated reports that people forced to work on construction projects suffer beatings, torture, disappearance and summary execution. (Endnote 1111) Women and children suffer these abuses, as well as men, (Endnote 1112) and some women labourers are also raped at night by soldiers. (Endnote 1113)

(d) The practice of forced labour on public development and infrastructure projects harms the social and economic life of the people of Myanmar

The practice of forced labour is destructive to the social and economic life of the people affected by it. As noted by a leading investigative group, "forcible conscription of civilians into compulsory labour duties for the military authorities ... further disrupts family life and pushes many families deeper into poverty" (Endnote 1114) in a country which is already one of the world's poorest. In Arakan State, for example, many of the people are day labourers, for whom the impact of being forced to work for nothing for the SLORC is compounded by the loss of opportunity to take what little paying work is available. (Endnote 1115) Family life is further destroyed as children are compelled to help fill the family's quotas for forced labour projects while their fathers continue to try to find voluntary, paid work. (Endnote 1116) The children themselves are thus deprived of education and childhood life.

The forced labour services of certain family members disproportionately shifts the burdens of the family's income-generating activity, and negatively affects the rural economy and, as a result, nutrition and health. While men are away on forced labour projects, "the burden of agriculture falls on the women. With depleted numbers in the community it becomes more difficult to plant, tend and harvest crops. Crop failure, malnutrition and disease are a result". (Endnote 1117) The impact of forced labour practices on the health of women and children is significant. (Endnote 1118) Indeed, "the forcible conscription of women, including girls, pregnant women and the elderly, into compulsory labour duties on government construction projects or even as porters in the war zones ... has major health and humanitarian implications for the whole of Burmese society, since not only does forced labour in itself have an extremely detrimental impact on health, but it is in the course of forced labour duties that many of the worst human rights violations against women, including rape and threats to life, have been committed". (Endnote 1119) The widespread practice of rape destroys the personal, familial and village lives of the women who suffer such abuses. (Endnote 1120)

(e) The development and infrastructure projects for which the Government uses forced labour do not benefit the community supplying the forced labour

The benefit from the development projects to the community from which forced labour is exacted is illusory or non-existent. (Endnote 1121) In many cases, whole villages are forcibly relocated in order for projects to go ahead. (Endnote 1122) In most cases the roads and railways under construction are intended to benefit the SLORC rather than any community in Myanmar. Roads and railways are designed for transporting troops to areas where the SLORC seeks to exercise greater control, and to facilitate tourist development. (Endnote 1123) In any case it is doubtful whether the construction of parts of major roads can be seen as beneficial to small communities; poverty is such that local people cannot afford road or rail travel. (Endnote 1124)

A number of sources are available to estimate the economic or market value of forced labour. They include the Government's own economic figures, as published in its statistical Annual Review, as well as data from World Bank and International Monetary Fund reports. In addition, the Government of the United States has issued a detailed account of what it calls "the market value of uncompensated and largely involuntary labor employed ... in public works projects", principally construction of roads and bridges in local development projects. According to the Foreign economic trends report: Burma, issued by the US Department of State in June 1996 and based primarily on the Government's own Annual Review, during the financial year 1994-95 that market value was approximately 3.1 per cent of the gross domestic product, figured on the basis of the official exchange rate for the kyat, Burma's currency. (Endnote 1125) During that period, the share of "people's contributions" in the cost of state projects was 53.9 per cent of the total value of expenditure. (Endnote 1126) In addition, SLORC's economic data reveals that the money saved by its forced labour programmes is diverted to increase military and other expenditures that do not benefit the people or provide for their basic needs. In fact, available data for those years indicate that government expenditures in the military procurement rose in part as a result of the windfall in the government budget in forced labour savings in public works. (Endnote 1127)

3. The Government of Myanmar uses forced labour on military construction projects

Forced labour exacted from the people of Myanmar is put to use in the construction of military facilities. Civilians reportedly have been forced to work on the construction of military and border police barracks. (Endnote 1128) Other forms of labour on behalf of the military have included building and maintaining military roads, and building and servicing military camps. (Endnote 1129)

B. Forced labour for private benefit

1. The Government of Myanmar uses forced labour to promote private benefit in joint venture developments, including the country's oil and natural gas reserves

The Government of Myanmar has sought to attract foreign investment to develop what are thought to be substantial natural gas and oil reserves in the country. Since 1992, reports from various sources consistently corroborate the Government's use of forced labour on a massive scale in parts of Myanmar where exploration of oil and gas resources, and associated works to build necessary infrastructure, are occurring. (Endnote 1130) The projects for development of oil and gas reserves include the Yadana gas pipeline project offshore from Mon State, and the Sagaing division test drilling project.

The Yadana gas pipeline represents the most advanced project for the development and exploitation of Myanmar's natural gas and oil reserves, and is operated as a joint venture between TOTAL, a French oil company, Unocal, a US oil company, and MOGE (Myanmar Oi1 and Gas Enterprises), a company wholly owned by the SLORC. (Endnote 1131) Widespread and persistent reports confirm that people living in the vicinity of the pipeline route are regularly forced to work construction of the pipeline route itself, and on related infrastructure. (Endnote 1132) Reliable reports of human rights abuses, including torture, rape, summary and arbitrary executions, and forced relocations as a result of forced labour have been documented and recently confirmed as to 11 villages in the region. (Endnote 1133) These reports are denied by both the Government of Myanmar, (Endnote 1134) and by the oil companies involved in the project. (Endnote 1135)

Construction of the 100-mile Ye-Tavoy railroad, thought to be associated with the development of the gas reserves and the installation of the pipeline, has resulted in relocation of ethnic Mon and Karen, fleeing forced labour duties. (Endnote 1136) To this extent at least, then, the railway appears to be connected with the construction of the pipeline, and its construction is of benefit to the private oil companies participating in the joint venture.

In addition, a Korean company, Yukong Oil Company, had a test well in Htaw Tha village in the Sagaing division. People who were forced to work on the construction of a road between Manywa and Khamti reported that a police post had been set up in the area to which men, women and children labouring in the area brought supplies night and day for police guards and for workers. (Endnote 1137)

2. Forced labour is used for the benefit of private investors in development, public works and tourism projects

As noted above, widespread use of forced labour on a significant scale supports the development of tourist infrastructure. (Endnote 1138) In addition, the Government recently has adopted a practice of inviting local investors to participate in the construction of highways and railroads with the incentive of return on their investments through the eventual establishment of toll gates to collect fees for the use of the roads. (Endnote 1139) The Government has announced that the privatization of infrastructure development is "part and parcel of plans to create more job opportunities for the people", (Endnote 1140) a strategy which appears to involve the implementation of development projects "by the Government, counting on the participation of the local people in the contribution of labour ...". (Endnote 1141) In Myanmar, most of the money made in the tourist industry is made in the airline and hotel industries, owned in part by foreign companies from Hong Kong, Malaysia, Singapore and Thailand. (Endnote 1142) These companies have reported benefits from the increased profits during 1996 Visit Myanmar Year, attributable in part to work of forced labourers on tourist attraction projects. (Endnote 1143)

3. The Government of Myanmar uses forced labour for the private commercial interests of military members

The commanding officers within the Tatmadaw are regularly reported to be involved in a variety of their own commercial ventures in the country, including shrimp cultivation, paddy and fishpond operations, tree-planting and timber cultivation. Following the pattern of forced labour that is evident in public projects, the military regularly forces the civilian population into service to suit their own commercial interests. For example, in Mergui-Tavoy district reports indicated that Karen people have been forced to work without pay on a large rubber plantation, and also in the construction of a dike for shrimp farming operations; it was reported that as many as 13,000 people were compelled to work on these projects. (Endnote 1144)