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ILO REPORT ON FL IN BURMA: SLICE 19



[ILO COMMISSION OF INQUIRY ON FORCED LABOUR IN BURMA, SLICE
19]
 
 
                              Part V
 
                 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.(962)
 
 
(1) PRELIMINARY QUESTIONS
 
516. After examining the information submitted by the
parties,(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.(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.(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,(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 rserv).
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.(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.(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".(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.(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,(971) the construction, maintenance and
servicing of military camps,(972) other work in support of the
military,(973) work on agriculture, logging and other
production projects undertaken by the authorities or the
military,(974) sometimes for the profit of private
individuals,(975) the construction and maintenance of roads,
railways and bridges,(976) other infrastructure work(977) and
a range of other tasks,(978) none of which comes under any of
the exceptions listed in Article 2(2) of the Convention.(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.(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;(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;(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,(983) and people are also frequently
rounded up directly by the military for forced labour,
bypassing the local authorities.(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.(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,(986) but
also to threats to the life and security(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(988) to physical
abuse,(989) beatings,(990) torture,(991) rape(992) and
murder.(993)
 
531. Forced labour in Myanmar is widely performed by
women,(994) children(995) and elderly persons(996) as well as
persons otherwise unfit for work.(997)
 
532. Forced labour in Myanmar is almost never remunerated(998)
nor compensated,(999) secret directives notwithstanding,(1000)
but on the contrary often goes hand in hand with the exaction
of money,(1001) food(1002) and other supplies(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,(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.(1005) The
impossibility of making a living because of the amount of
forced labour exacted is a frequent reason for fleeing the
country.(1006)
 
534. The burden of forced labour also appears to be
particularly great for non-Burman ethnic groups,(1007)
especially in areas where there is a strong military
presence,(1008) and for the Muslim minority, including the
Rohingyas.(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.(1010) Porters are rarely given medical treatment of any
kind;(1011) injuries to shoulders, backs and feet are
frequent,(1012) but medical treatment is minimal(1013) or
non-existent(1014) and some sick or injured are left behind in
the jungle.(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.(1016) Forced labourers, including those sick or
injured, are frequently beaten or otherwise physically abused
by soldiers, resulting in serious injuries;(1017) some are
killed,(1018) and women performing compulsory labour are raped
or otherwise sexually abused by soldiers.(1019) Forced
labourers are, in most cases, not supplied with food(1020) --
they sometimes even have to bring food, water, bamboo and wood
to the military;(1021) porters may receive minimal rations of
rotten rice,(1022) but be prevented from drinking water.(1023)
No clothing or adequate footwear is provided to porters,
including those rounded up without prior warning.(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.(1025) Forced
labourers on road and railway construction have to make their
own arrangements for shelter as well as all other basic
needs.(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.(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,(1028) that
provision does not appear to be ever applied in practice,
(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.(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.(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.(1032) 
 
 
(4)  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,(1033) and again announced in the Government's
observations on the complaint.(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.(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(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),(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.(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".(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".(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. Andr 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.
_________________
 
NOTES
 
962. See above, para. 70. 
 
963. For a detailed description of the measures taken at the
First Session, see above paras. 17-27. 
 
964. For more details on the work of the Second Session, see
above, paras. 55-67. 
 
965. See above, para. 58. 
 
966. Report of the Commission instituted under article 26 of
the Constitution of the International Labour Organization to
examine the complaint on the observance by Poland of the
Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87), and the Right to Organise and
Collective Bargaining Convention, 1949 (No. 98), presented by
delegates at the 68th Session of the International Labour
Conference (1994), Official Bulletin, Vol. LXVII, Series 466,
p. 122. 
 
967. See the relevant articles reproduced above in para. 3. 
 
968. See above, paras. 121-168. 
 
969. See above, para. 8. 
 
970. See above, paras. 12-16. 
 
971. See paras. 300 to 350 above. 
 
972. See paras. 351 to 373 above. 
 
973. See paras. 374 to 388 above. 
 
974. See paras. 394 to 407 above. 
 
975. See paras. 394, 396 and 504 above. 
 
976. See paras. 408 to 443 above. 
 
977. See paras. 444 to 457 above. 
 
978. See paras. 458 to 461 above. 
 
979. See paras. 485 to 488 and 492 to 502 above. 
 
980. See paras. 237 et seq. and 470 et seq. above. 
 
981. See paras. 286 to 288 above. 
 
982. See paras. 480 and 481 above. 
 
983. See paras. 291 and 322 above. 
 
984. See paras. 302, 307, 308, 328, 329, 330, 333, 341, 343,
349, 367, 455 and 481. 
 
985. See paras. 239 and 240 above. 
 
986. See paras. 302, 305, 307, 312, 373, 387, 414, 434 and 442
above. 
 
987. See paras. 289, 340 and 429 above. 
 
988. See paras. 343, 367, 414 and 433 above. 
 
989. See paras. 292, 343, 367, 418, 433, 435 and 441 above. 
 
990. See paras. 292, 311, 317, 349, 376, 413 and 418 above. 
 
991. See paras. 292, 418 and 435 above. 
 
992. See paras. 292, 418, 441 and its footnote (734) above. 
 
993. See paras. 311, 317, 343 (footnote 437), 349 and 418
above. 
 
994. See paras. 291, 302, 308, 314, 317, 323, 334, 342, 343,
353, 368, 375, 384, 416, 430, 437, 456 and 511 above. 
 
995. See paras. 291, 302, 314, 323, 343, 368, 375, 384, 416,
430, 437, 456 and 511 above. 
 
996. See paras. 291, 302, 323, 416, 430 and 511 above. 
 
997. See paras. 302 and 323 above. 
 
998. See paras. 312, 338, 348, 387, 395, 406, 415, 433, 440,
457 and 512 above. 
 
999. See paras. 319, 414 and 512 above. 
 
1000. See paras. 245 et seq. and 473 et seq. above. 
 
1001. See, inter alia, paras. 295 and 443 above. 
 
1002. See paras. 370, 372 and 404 above. 
 
1003. See paras. 352 and 370 above. 
 
1004. See paras. 296, 297 and 434 above. 
 
1005. See paras. 295, 302, 307, 312, 373, 387, 434 and 443
above. 
 
1006. See paras. 297, 339 and a number of oral testimonies. 
 
1007. See para. 296 above. 
 
1008. See paras. 355 et seq., 362 and 366 above. 
 
1009. See paras. 296, 339 and 362. See also paras. 249 and
254, concerning restrictions on the freedom of movement and
their bearing on the exposure to forced labour. 
 
1010. See paras. 300, 328, 330, 332 and 346 above. 
 
1011. See para. 318 above. 
 
1012. See para. 314 above. 
 
1013. See para. 319 above. 
 
1014. See para. 348 above. 
 
1015. ibid. 
 
1016. See paras. 414 and 432 above. 
 
1017. See paras. 317, 349, 372, 376, 385, 418, 432, 435, 441
and 457 above. 
 
1018. See paras. 317, 346, 347, 349, 374, 418 and 432 above. 
 
1019. See paras. 317, 343, 353, 372, 418 and 432 above. 
 
1020. See paras. 338, 341, 370, 380, 387, 406, 414 and 433
above. 
 
1021. See paras. 370 and 372 above. 
 
1022. See paras. 316 and 348 above. 
 
1023. See para. 316 above. 
 
1024. See para. 315 above. 
 
1025. See para. 320 above. 
 
1026. See paras. 417, 433 and 440 above. 
 
1027. See para. 514 above. 
 
1028. See para. 258 above. 
 
1029. See para. 284 above. 
 
1030. See paras. 481 and 514 above. 
 
1031. See para. 203 above. 
 
1032. See paras. 204 and 478 above. 
 
1033. See para. 122 et seq. above. 
 
1034. See para. 119 above. 
 
1035. See paras. 481 and 529 above. 
 
1036. See para. 258 above. 
 
1037. See para. 152 above. 
 
1038. See paras. 477 and 489 to 491 above. 
 
1039. UN doc. UNGA A/RES/52/137 of 12 Dec. 1997, para. 8. 
 
1040. UN doc. CESE/CN.4/1998/70 of 15 Jan. 1998, para. 78.
 
 
[END OF SLICE 19]
 
 
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APPENDICES (IN ABOUT 25 SLICES) TO FOLLOW