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ICFTU/ETUC SUBMISSION TO THE EU-GSP (r)
Subject: ICFTU/ETUC SUBMISSION TO THE EU-GSP (2/4)
/* posted 17 Aug 6:00am 1996 by DRUNOO@xxxxxxxxxxxx in igc:reg.burma */
/* -------------" ICFTU &ETUC Report on Forced Labour (2/4) "----------- */
[ Reproduced from the submission by Australian Council of Trade Unions to
Australian Human Rights Sub-Committee, Vol 6, pp.1010-1032 -- U Ne Oo.]
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Burma: SLORC's Private Slave Camp
Submission to the European Union Generalised System of Preferences
ICFTU. International Confederation of Free Trade Unions
155, Boulevard Emile Jacqmain, B-1210 Brussels
Tel.:224.02.11 Fax:201.58.18
ETUC. European Trade Union Confederation
155, Boulevard Emile Jacqmain, B - 1210 Brussels
Tel.:224.04.11 Fax:224.04.54
3. FORCED PORTERING AND ILO STANDARDS
The most widely-reported form of forced labour has up until recently been
forced portering, whereby the army raids villages and towns for male and
female civilians and forces them to carry its supplies during offensive
the border regions. As illustrated below, the portering, forced
indiscriminately on any numbers of civilians that arm requires, leads to
amazing exploitation and physical violence, and is frequently carried out
in life-threatening situations, owing to conflicts taking place in the
areas concerned [12]. Hundreds of detailed examples have been published by
human rights sources of how SLORC detachments enter villages, force men and
women out of their homes at gunpoint and beat or kill those that resist
orders. Victims are rounded up, tied together with ropes and marched-off
towards regrouping points, where they are then forced to take on heavy
loads of ammunition and other military material, as well as food stuffs.
The issue of forced portering was the key-element in a 1993 ICFTU procedure
against the Government of Burma (Myanmar) Lodged under article 24 of the
ILO Constitution: given that all the evidence submitted at the time remains
relevant today, as demonstrated throughout this report, the main aspects of
this procedure are summarised below.
3.1 The ICFTU Representation under Art. 24 of ILO Constitution
By letter dated 25 January 1993, the ICFTU lodged a formal representation
under article 24 of the ILO Constitution [13], alleging the non-observance
by the Government of Burma (Myanmar) of the Forced Labour Convention, 1930
(ILO Convention No 29). The Convention was ratified by the Government of
Burma on 4 March 1995 and is in force for the country. Article 2 Sec 1 of
the convention states as follows:
"for the purpose of the Convention the term "forced or compulsory
labour" shall mean 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"
3.1.1 The ICFTU allegations
Quoting numerous testimonies by victims, reports by human rights
organizations and other sources, the ICFTU representation, which dealt
exclusively with the issue of "forced portering" stated that:
"...woman and children as well as men are randomly rounded up by
local police or the military from such public places as train
stations and movie theaters or from their homes or places of work;
in many cases, village headmen are responsible for filling porter
quotas or providing large sums of money to the military instead.
Porters are required to carry heavy loads of ammunition, food and
other supplies between army camps, generally back and forth over
rugged mountains which are inaccessible to vehicles. They must
often construct the camps for the military upon arrival. They are
not paid for their work and are allowed very little food, water or
rest. In many case, porters are bound together in groups of 50-200
at night. They are denied medical care. Porters are subject to
hostile fire as well as to abuse by the soldiers they serve. They
are routinely beaten by the soldiers and many of the women are
raped repeatedly. Unarmed themselves, they are placed at the head
of the columns to detonate mines and booby traps as well as to
spring ambushes. According to credible sources, many of these
porters die as a result of mistreatment, lack of adequate food and
water, and use as human mine sweepers...[14]"
3.1.2. Inapplicability of Exceptions from the scope of the Convention
The ICFTU demonstrated also that the practice of forced portering did not
fall within any of the five exceptions from the scope of the Convention, as
listed in Art 2. Sec 2 namely:
a) work or service exacted in virtue of military service: the porters are
forced to provide civilian, not military services: they thus constitute
civilians defined in international humanitarian law, i.e. "person who
accompany the armed forces without actually being members thereof";
b) work or service forming part of normal civic obligations: in view of the
brutality of recruitment, threats of and actual assassination of
non-compliance, and life threatening conditions of work, forced portering
in the country cannot be considered as qualifying for that exemption;
c) work or service exacted as a consequence of a conviction in a court of
law: while cases have been reported of forced portering by prisoners with
light sentences or with less than a year to serve, there is no evidence
that the portering services have been exacted as part of the prisoners'
sentences in a court of law;
d) work or service exacted in the case of an emergency: although the
government is engaged in fighting with several ethnic groups, the country
is by no means in the type of emergency contemplated by the exception
above: insurgents have posed no threat to major population centres: neither
their activities nor borer-skirmishes can be constructed as "sudden" or
"unforeseen": moreover, no state of emergency is formally in force;
e) minor communal services: portering is in the direct interest of the
federal military authorities, not the local community, whose members,
moreover, are not consulted as to the need for such work.
Moreover, as forced portering in Burma had become the norm, rather than the
exception, the ICFTU held that a specific provision - in Article 1(2) of
the Convention - which might allow recourse to forced or compulsory labour
during a transitional period - was not applicable, even if one was to
consider Burma still to be in a such a period [15]. (The Committee rejected
the very notion of transitional period in the case, viz. infra).
3.1.3 The Government's response
In response[16] to the ICFTU's allegations, the Government adopted a two
pronged approach. On the one hand, it portrayed the detailed examples
provided by the ICFTU as "false and based on fabrication by people who
wish to denigrate the image of the Myanmar authorities and (...) do not
understand the tradition and culture of the Myanmar people." Since the
reported situations had occurred in or close to conflict areas, the
government said, victims' interviews reported by the ICFTU could only and
"unequivocally provide false and fabricated information to the fact-finding
missions under the influence and duress of terrorists". The government had
even conducted its own fact-finding missions, which had been unable to
corroborate the testimonies presented by the ICFTU, since it could not
identify any of the quoted victims; it thus concluded that "since the
existence of the said persons has not been established or proved, the
allegations should be regarded as unfounded facts".
Nevertheless, the government commented onvarious specific forced labour
practices and human rights violations of which it stood accused, denying
most of them in some detail. As it had not been able to find the witnesses
quoted by the ICFTU, the government had resorted to meet - "with the
assistance of ward and village tract authorities" - with villagers who had
been "voluntarily looking for work as porters to earn some money". On the
basis of its teams' observations and its own information, the government
had thus established, inter alis, that:
"...no coercion was involved in forced portering;
- allegations of harsh or inhumane treatment of porters by the
military were untrue;
- local authorities were consulted before the recruitment of
porters; the latter were unemployed, physically fit and paid wages
which had been previously agreed upon;
- porters were never exposed to danger;
- many of them were volunteers;
- it had never been heard that any woman had ever worked as a
porter;
- porters were supplied with food, water and adequate medical care,
and
- any porters injured during service were compensated in accordance
with the law..."
On the other hand, the Government also stated in detail how its practice was
consistent with a number of specific articles of the Convention and how,
where portering existed, recruitment for service was in line with national
law [17].
3.1.4. The conclusion of the ILO Committee
Noting that the testimony on forced portering given by the ICFTU conflicted
with that of the government, the Committee abstained from commenting on
either of them [18]. Hence, it is limited its examination of the case to
its legal aspects. However, in analysing - far beyond the few articles
invoked by the government - the national (colonial) legislation which the
latter had provided (town act, 1907 and Village act 1908), the Committee
highlighted a number of provisions which, either would appear to have been
flagrantly breached in the cases submitted by the ICFTU, or were per se be
contrary to Convention no 29. The provisions codify the principle that any
service, including portering supply of food carriage and means of transport
for any troops or police could legally imposed, upon payment, and under
penalty of fine or imprisonment in the case of non-compliance.
The Committee concluded that this legislation provided "for the exaction of
labour and services, in particular portering services, under the menace of
a penalty from residents who have not offered themselves voluntarily, that
is, the exaction of forced or compulsory labour as defined in Article 2(1)
of the Convention.[19]" It noted that it repeal or amendments to it had
regularly been called for by the ILO Committee of Experts since 1964(1),
and that the government had committed itself to doing so since 1967. The
committee considered "that this should now be done". Commenting on the
Government's call "to take into account the cultural heritage of (ILO)
member States", the Committee found that the practice of forced labour in
the country did not come within the scope of any of the exceptions provided
for by the convention. It rejected any notion of transitional period
outright. In conclusion, the Committee forcefully called for the repeal of
the above-mentioned provisions and for strictly enforced penal prosecution
and punishment of coercion to forced labour. This appeared all the more
important, said the Committee, "since the blurring of the borderline
between compulsory and voluntary labour, recurrent throughout the
Government's statements (...) is all the more likely to occur also in
actual recruitment by local or military officials [20]".
4. Other types of forced labour occurring in Burma
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Footnotes:
[12] Up until 1992, most information on this issue referred to the Shan,
Karenni, Karen and Mon people, living in the Burma-Thailand border areas,
rather than those from other parts of Burma, such as the Kachin, for
instance, whose plight has hardly been better at the hands of the country's
armed forces.
[13] The procedure in question is governed by the "Revised Standing Orders"
adopted by the ILO Governing Body at its 212th Session in March 1980. It is
used only on extremely serious matters, pointing at consistent patterns of
violations. Through its detailed scrutiny of receivability, its through
examination by a specially-appointed, tri-partite Committee of the
Governing Board, and the amount of ILO and UN sources upon which it can
draw, the article 24 procedure is feared by most governments against whom
it is applied. It is situated one legal step short of full Commission of
Enquiry, the strongest ILO procedure. Unlike the latter, however, the
article 24 representation does not provide the special Committee with
autonomous investigation powers, a fact stressed by the Committee
established in the case of Burma. (For details of the procedure followed in
this case, see Appendix D Sec 1.9)
[14] see: Appendix D: "Report of the Committee set up to consider the
representation made by the ICFTU under article 24 of the ILO constitution
alleging non-observance by Myanmar of the Forced Labour Convention, 1930
(no 29). ILO Governing body. 261 Session, Geneva, November 1994, ILO doc no
GB.261/13/7/, at Sec12.
[15] The ICFTU quoted a 1979 ILO report (General Survey on the Abolition of
Forced Labour by the Committee of Experts on the Application of Conventions
and Recommendations, ILO, Geneva, June 1979) indicating that the provisions
allowing for the use of forced labour in such transitional periods,
"essentially at certain colonial practices, are hardly ever invoked now
as justification for retaining forced or compulsory labour "(cfr. Appendix
D, Sec17.
[16] summarised in "The Government's observations", see:Appendix D Secs
20-41.
[17] The government said that any portering work was voluntary, made only
in case of "urgent necessity", and 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 Town Act. In summary, these leagl
provisions, inherited from the colonial period, establish as the duty of
villages' headman to "collect and furnish, upon receipt of payment (...)
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 traveling on duty".
The same legislation imposes fines, confinement for up to 48 hours or
imprisonment for up to one month for non-compliance. In its conclusions,
the ILO Committee noted that not only did these provisions contravene the
prohibition of forced labour as defined in Art.2(1) of ILO Convention No29,
and thatthe ILO Committee of Experts for the Application of Conventions and
Recommendations had regularly called for their amendment or repeal since
1964, but also that the Government itself had "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 and which did not meet the standard and the
needs of the country's new social order"; according to the Government,
"these provisions were obsolete and soon to be repealed"; the Committee
considered that "this should now be done".(see Appendix D, at Sec50.).
[18] While acknowledging that the government had "sought .... to find the
witnesses quoted by the complainant" as well as its allegation that they
could only have spoken under duress, the Committee referred, in the next
sentence, to the 1993 statement by the UNCHR Special Rapporteur on Myanmar
that "serious oppression and an atmosphere of pervasive fear exist in
Myanmar"(Appendix D Sec43.)
[19] ibid.,Sec48.
[20] ibid.,Sec52.
/* Endpart 2/4 */