Forced labour in Myanmar (Burma)

(2) Military camp work

(3) Other work in support of the military

(4) Forced recruitment

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

(a) Information provided to the Commission
(b) Oral testimony

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

(7) Other infrastructure work

(a) Nature and condition of work
(b) Specific examples from documentary material and oral testimony

(8) General work

13. Findings as to compliance with the Convention

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
(b) Non-applicability of exceptions defined in Article 2(2) of the Convention
(c) Expiration of the transitional period
(d) Role of secret directives and payment of wages

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

(3) Legislation on compulsory military service

(4) Sanctions for illegally imposing forced or compulsory labour

B. National practice considered in the light of the Convention

(1) Requisition of labour

(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

(a) Portering
(b) Military camp work and other work in support of the military
(c) Forced conscription
(d) Work on agriculture, logging and other production projects
(e) Construction and maintenance of roads, railways and bridges
(f) Other infrastructure work
(g) General work

(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

(b) Violation of specific prohibitions

(i) Imposition of forced or compulsory labour for private benefit
(ii) Exaction of forced or compulsory labour from women, children, elderly people and disabled persons
(iii) Denial of remuneration and compensation
(iv) Compulsory cultivation

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

Part V. Conclusions and recommendations

14. Conclusions and recommendations

(1) Preliminary questions

(2) Terms of reference of the Commission

(3) Conclusions on the substance of the case

(4) Recommendations

(5) Concluding observations

Appendices

Part I

Establishment of the Commission

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)⁽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.⁽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: The Right Honourable Sir William DOUGLAS, PC, KCMG (Barbados), former Ambassador; former Chief Justice of Barbados; former Chairman, Commonwealth Caribbean Council of Legal Education; former Chairman, Inter-American Juridical Committee; former Judge of the High Court of Jamaica; Chairperson of the Committee of Experts on the Application of Conventions and Recommendations.

Members: Mr. Prafullachandra Natvarlal BHAGWATI (India), former Chief Justice of India; former Chief Justice of the High Court of Gujarat; former Chairman, Legal Aid Committee and Judicial Reforms Committee, Government of Gujarat; former Chairman, Committee on Juridicare, Government of India; former Chairman of the Committee appointed by the Government of India for implementing legal aid schemes in the country; member of the International Committee on Human Rights of the International Law Association; member of the Editorial Committee of Reports of the Commonwealth; Chairman of the National Committee for Social and Economic Welfare of the Government of India; Ombudsman for the national newspaper Times of India; Chairman of the Advisory Board of the Centre for Independence of Judges and Lawyers, Geneva; Vice-President of El Taller; Chairman of the Panel for Social Audit of Telecom and Postal Services in India; member of the United Nations Human Rights Committee; member of the Committee of Experts on the Application of Conventions and Recommendations.

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.

1. The Workers' delegates were: Messrs. E. About-Risk (Lebanon), C. Agyei (Ghana), K. Ahmed (Pakistan), M. Blondel (France), W. Brett (United Kingdom) and U. Edström (Sweden), Ms. U. Engelen-Kefer (Germany), Messrs. R. Falbr (Czech Republic), C. Gray (United States), S. Itoh (Japan), Y. Kara (Israel), A. Lettieri (Italy), I. Mayaki (Niger), S. Mookherjee (India), B.P. Mpangala (United Republic of Tanzania) and J.-C. Parrot (Canada), Ms. P. O'Donovan (Ireland) and Messrs. F. Ramirez Leon (Venezuela), Z. Rampak (Malaysia), I. Sahbani (Tunisia), A. Sanchez Madariaga (Mexico), G. Sibanda (Zimbabwe), L. Sombes (Cameroon), L. Trotman (Barbados) and T. Wojcik (Poland).

2. Appendix I.

ILO Home

Forced labour in Myanmar (Burma)

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

Part 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.⁽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.⁽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.⁽⁵⁾

20. Furthermore, the opportunity of presenting information relevant to the matters raised in the complaint was also offered to several intergovernmental organizations,⁽⁶⁾ to international and national workers' and employers' organizations,⁽⁷⁾ as well as to a number of non-governmental organizations operating in the legal and human rights spheres.⁽⁸⁾ In addition, companies mentioned in the complaint⁽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.⁽¹⁰⁾ The information included two ICFTU reports, entitled Burma: SLORC's private slave camp⁽¹¹⁾ and Forced labour in Burma: An international trade union briefing;⁽¹²⁾ several documents relating to the withdrawal of trade preferences from Myanmar by the European Community;⁽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;⁽¹⁴⁾ a report from Images Asia entitled Nowhere to go;⁽¹⁵⁾ and a copy of a letter from the ICFTU to the complainants dated 14 July 1997.⁽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⁽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),⁽¹⁸⁾ India (communication dated 27 August 1997),⁽¹⁹⁾ Malaysia (communication dated 18 August 1997),⁽²⁰⁾ New Zealand (communication dated 15 August 1997),⁽²¹⁾ Singapore (communication dated 5 July 1997)⁽²²⁾ and Sri Lanka (communication dated 31 July 1997)⁽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.⁽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.⁽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.⁽²⁶⁾

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.⁽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.⁽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,⁽²⁹⁾ a publication entitled Holidays in Burma?,⁽³⁰⁾ an ACFOA report entitled Slave labour in Burma,⁽³¹⁾ and several transparencies allegedly showing forced labour in Myanmar.⁽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.⁽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.⁽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.⁽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.⁽³⁶⁾

45. In a communication dated 12 August 1997, the Burma UN Services Office provided two reports (entitled Forced labor and Child labor)⁽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.⁽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.⁽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.⁽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.⁽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);⁽⁴²⁾ a recent report on the human rights situation in Myanmar entitled No safety in Burma, no sanctuary in Thailand;⁽⁴³⁾ and transcripts of interviews by Human Rights Watch with five persons from Myanmar conducted in Thailand in June 1997.⁽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;⁽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;⁽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;⁽⁴⁷⁾ and a number of other reports containing relevant information relating to the Chin, Kayah, Mon and Shan States and the Tanintharyi (Tenasserim) Division.⁽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,⁽⁴⁹⁾ analyses of portering and child labour in Myanmar,⁽⁵⁰⁾ as well as 15 recent Karen Human Rights Group reports on the situation in the country.⁽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.⁽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.⁽⁵³⁾

54. In a communication dated 11 August 1997, TOTAL provided comments on the complaint before the Commission.⁽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.⁽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.⁽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.⁽⁵⁷⁾

60. The Commission then heard the opening statements by a complainant and by the representatives of the complainants.⁽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.⁽⁵⁹⁾

65. Furthermore, the Commission authorized another witness who was unable to travel to Geneva for the session to give evidence by video conference.⁽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.⁽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⁽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.⁽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?.⁽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,⁽⁶⁵⁾ transmitted by the Burma Peace Foundation; several reports by the Karen Human Rights Group,⁽⁶⁶⁾ transmitted by that organization; and an EarthRights International report entitled School for Rape,⁽⁶⁷⁾ transmitted by that organization.

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.⁽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.⁽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⁽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.⁽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.⁽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.⁽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.

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.⁽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.⁽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.⁽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.⁽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.

3. See Report of the Commission Appointed under Article 26 of the Constitution of the International Labour Organisation to Examine the Complaint Filed by the Government of Ghana concerning the Observance by the Government of Portugal of the Abolition of Forced Labour Convention, 1957 (No. 105), (1962) Official Bulletin, Vol. XLV, No. 2, Supplement II, para. 15; Report of the Commission Appointed under Article 26 of the Constitution of the International Labour Organisation to Examine the Complaint Filed by the Government of Portugal concerning the Observance by the Government of Liberia of the Forced Labour Convention, 1930 (No. 29), (1963) Official Bulletin, Vol. XLVI, No. 2, Supplement II, para. 381; Report of the Commission Appointed under Article 26 of the Constitution of the International Labour Organisation to Examine the Complaints concerning the Observance by Greece of the Freedom of Association and Protection of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), Made by a Number of Delegates to the 52nd Session of the International Labour Conference, (1971) Official Bulletin, Vol. LIV, Special Supplement, No. 2, Appendix IV, para. 8; Report of the Commission instituted under article 26 of the Constitution of the International Labour Organisation 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, (1984) Official Bulletin, Vol. LXVII, Special Supplement, Series B, para. 5; Report of the Commission of Inquiry appointed under article 26 of the Constitution to examine the observance by Nicaragua of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), (1991) Official Bulletin, Vol. LXXIV, Supplement 2, Series B, para. 5; Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organisation to examine the observance by Romania of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), (1991) Official Bulletin, Vol. LXXIV, Supplement 3, Series B, para. 4.

4. The text of these rules is appended to the present report (Appendix III).

5. An invitation was sent to the Governments of the following countries: Australia, Bangladesh, Cambodia, Canada, China, France, India, Indonesia, Japan, Republic of Korea, Lao People's Democratic Republic, Malaysia, New Zealand, Papua New Guinea, Philippines, Singapore, Sri Lanka, Thailand, United States of America and Viet Nam.

6. The United Nations, including the United Nations High Commissioner for Refugees; the European Union; the Association of South-East Asian Nations (ASEAN).

7. Having consultative status with the ILO: International Confederation of Free Trade Unions, World Confederation of Labour, World Federation of Trade Unions, International Organization of Employers. Others: International Federation of Agricultural Producers, International Federation of Chemical, Energy, Mine and General Workers' Unions, Brotherhood of Asian Trade Unionists, International Union of Food and Allied Workers' Associations, ASEAN Confederation of Employers, Federation of Trade Unions of Burma, Union of Myanmar Chamber of Commerce and Industry.

8. Non-governmental organizations: Action contre la faim, Aide Médicale Internationale, Amnesty International, Anti-Slavery International, Article 19, Australia Burma Council, Australian Council for Overseas Aid, Burma Action Group, Burma Border Consortium, Burma Centrum Nederland, Burma Donors' Secretariat, Burma Issues, Burma Peace Foundation, Burmese Relief Centre, Burma UN Services Office, Burmese Women's Union, Danish Burma Committee, Earth Rights International, Euro-Burma Office, Friends World Committee for Consultation (Quakers), Health Unlimited, Human Rights Watch (Asia), Images Asia, International Commission of Jurists, International Federation of Human Rights, International Human Rights Law Group, International League for Human Rights, International League for the Rights and Liberation of Peoples, International Rescue Committee, International Work Group for Indigenous Affairs, Investor Responsibility Research Center, Jesuit Refugee Service, Karen Human Rights Group, Lawyers' Committee for Human Rights, Maryknoll Thailand, Médecins Sans Frontières (France), Médecins Sans Frontières (Holland), Médecins Sans Frontières (Thailand), Minority Rights Group, Mon Information Service, Project Maje, Shan Human Rights Foundation, Southeast Asia Information Network and Tourism Concern.

9. TOTAL, UNOCAL Corporation, and Yukong Limited.

10. Doc. 35. (Documents referred to in this chapter are those received by the Commission following its First Session and listed in Appendix IV.)

11. Doc. 36.

12. Doc. 45.

13. Docs. 37-41.

14. Docs. 42 and 43.

15. Doc. 44 (same as doc. 125, q.v.).

16. Doc. 46.

17. See Appendix III for the text of the Rules.

18. Doc. 34.

19. Doc. 159.

20. Doc. 152.

21. Doc. 105.

22. Doc. 2.

23. Doc. 56.

24. Docs. 57-84.

25. Doc. 11.

26. Doc. 33.

27. Docs. 85-101.

28. Doc. 153.

29. Doc. 101.

30. Doc. 102.

31. Doc. 103 (a copy of this document can be found in doc. 1 at p. 227 ff.).

32. Doc. 104.

33. Docs. 12-14.

34. Docs. 106-124.

35. Doc. 161.

36. Docs. 1, 154-158.

37. Docs. 73 and 74.

38. Doc. 164.

39. Docs. 162 and 163.

40. Doc. 160 (English version in doc. 154 at p. 4962 ff.).

41. Doc. 3.

42. Doc. 149.

43. Doc. 150.

44. Doc. 151.

45. Docs. 125-128, 131 and 132.

46. Docs. 129 and 133.

47. Doc. 130.

48. Docs. 134-148.

49. Doc. 32.

50. Docs. 16 and 21.

51. Docs. 15, 17-20 and 22-31.

52. Docs. 6-10.

53. Doc. 4.

54. Docs. 48-55.

55. See in particular para. 26 above. Reminders were sent to the Government by the secretariat on 15 Oct. and 9 and 12 Nov. 1997.

56. Stenographic record of the first sitting, 17 Nov. 1997, pp. 2-3.

57. ibid., pp. 6-7.

58. The following persons made opening statements: Mr. William Brett, complainant, Worker representative of the United Kingdom and Chairman of the Workers' group of the Governing Body of the ILO; Messrs. Kuczkiewicz and Fenwick, designated representatives of the complainants; and Mr. Maung Maung, advisor to the complainants.

59. Stenographic record of the fourth sitting, 19 Nov. 1997, p. 1.

60. Stenographic record of the tenth sitting, 25 Nov. 1997, p. 1.

61. The list of documents submitted during the hearings is reproduced in Appendix VI to this report.

62. The list of documents received by the Commission following its Second Session is reproduced in Appendix V to this report.

63. Doc. 176.

64. Doc. 167.

65. Doc. 168.

66. Docs. 169-172, 174 and 175.

67. Doc. 173.

68. Doc. 165.

69. Doc. 166.

70. Min Lwin appeared before the Commission on 18 and 19 Nov. 1997. See Ch. 4, Second Session of the Commission, paras. 55 to 68.

71. See Appendix VII. In addition, Appendix VIII to this report lists the documents submitted to the Commission during its visit to the region.

72. Appendix VII, Witnesses 1 to 17.

73. ibid., Witnesses 18 to 88.

74. ibid., Witnesses 89 to 141.

75. It was during this period that the Commission authorized the taking of testimonies referred to in para. 81.

76. ibid., Witnesses 142 to 209.

77. ibid., Witnesses 210 to 241.

Part III

Allegations by the parties and historical
background of the case

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

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

(1) Factual allegations submitted by the complainants

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

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

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

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

(2) Legal conclusions submitted by the complainants

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

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

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

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

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

(3) The Government's observations⁽⁸⁰⁾

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

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

(a) Public purposes or public sector

(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".

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."⁽⁸¹⁾ Having indicated, in relation to Articles 6 to 17 of the Convention, that in view of the non-existence in the country of forced labour (and of chiefs of the kind envisaged in Articles 7 and 10), the question of compliance with the requirements under these Articles did not arise, the Government reported under Article 18 that: "Officials of administration in this country, when they are on government tours in the rural areas, use the services of porters, boatmen, bullock carts, etc. But they are not employed in the sense of forced or compulsory labour as envisaged in this Convention." Finally, under Article 25 of the Convention, the Government referred to section 374 of the Penal Code, under which: "Whoever unlawfully compels any person to labour against the will of that person, shall be punished with imprisonment of either description for a term which may extend to one year, with fine, or with both."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) they must be unemployed;

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

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

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

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

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

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

(a) Allegations made by the complainant organization

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

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

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

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

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

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

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

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

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

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

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

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

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

The use of voluntary labour, alleged compulsory or forced labour, was made only for the urgent necessity in accordance with the following provisions: (a) section 8(1)(g)(n) and (o) of the Village Act (1908); (b) section 9(b) of the Towns Act. According to these provisions only the local highest civil authorities are vested with power for necessary recruitment of any form of voluntary labour. Such recruitment was done only for the betterment of the community itself under the supervision of the local authorities concerned. Therefore, it was not practical at all to remove workers from their place of habitual residence.
Myanmar's practices of voluntary labour (alleged forced labour) satisfied the conditions mentioned in Article 9.
There was not "forced or compulsory labour" exacted as tax. Moreover, the allegations made did not apply in any case relating to the provisions of Article 10.
As for Article 11, only able-bodied adults were permitted to contribute voluntary labour in community development programmes. There was no forced labour of any form in the country. Even in the case of porters, recruitment was done only for urgent unexpected requirements. But in any way the recruitment was absolutely voluntary. Porters therefore were not conscripted. Instead they offered their services on their own accord for want of subsistence. Furthermore, they were provided with enough food and medical care during their service, and they all were covered by the Workmen's Compensation Act of 1923.
The aforesaid voluntary labour contribution never exceeded 60 days. If the work was not completed within this period, others who offered their service voluntarily were given their turn. Porters who served more than once were accepted strictly on a voluntary basis.
In community development projects and public works, labour contributors were remunerated on a piece-rate basis so that rest during working time was at their own disposal.
Voluntary labour contributors and porters were remunerated. They were being paid at prevailing Government wage-rates.
The existing Workmen's Compensation Act of 1923 and other relevant rules and regulations were applicable both to voluntary labour and porters.
According to the existing practices Article 16 was not applicable.
Forced or compulsory labour for the transport of persons or goods, such as the labour of porters or boatmen, was not applicable since they never existed and therefore allegations made under Article 18 were not valid.
As regards Articles 23, 24 and 25, instruments regulating the use of any form of voluntary labour (alleged forced or compulsory labour) and the relevant measures to guarantee compensation in case of accident and death were in force. These voluntary labour contributors were treated on an equal footing with other workers under respective laws and regulations.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(1) General Assembly

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(4) Other United Nations bodies

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

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

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

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

78. The full text of the supplementary evidence submitted is reproduced as Appendix I to this report.

79. See paras. 150 and 151 below.

80. The text of the Government's observations on the initial complaint and supplementary evidence submitted is reproduced as Appendix II to the present report, unabridged except for two confidential annexes ("Annexures" II and VII) which have been omitted.

81. Moreover, the Government stated under Art. 2 that: "So far there had been no necessity to take advantage of the exemptions provided under para. 2 of this Article. However, it will be duly reported when necessity arises."

82. The full wording of the relevant provisions of the Village Act and the Towns Act is given in paras. 238-240 below.

83. Art. 24 of the ILO Constitution states that: "In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit."

84. See paras. 15 to 19 of the report of the Committee set up to consider the representation made by the ICFTU under art. 24 of the ILO Constitution alleging non-observance by Myanmar of the Forced Labour Convention, 1930 (No. 29) (doc. GB.261/13/7, Geneva, Nov. 1994).

85. See para. 131 above. The substantially identical indications given by the Government to the Committee set up to consider the representation made by the ICFTU under art. 24 of the ILO Constitution alleging non-observance by Myanmar of the Forced Labour Convention, 1930 (No. 29) are reflected in paras. 22 to 25 of that Committee's report (doc. GB.261/13/7, Geneva, Nov. 1994).

86. See paras. 26 and 27 of the report of the Committee set up to consider the representation made by the ICFTU under art. 24 of the ILO Constitution alleging non-observance by Myanmar of the Forced Labour Convention, 1930 (No. 29) (doc. GB.261/13/7, Geneva, Nov. 1994).

87. ibid., paras. 28 and 29.

88. ibid., paras. 30 to 32.

89. ibid., para. 33.

90. ibid., paras. 37 to 39.

91. ibid.

92. See, ibid., paras. 40 and 41.

93. ibid., para. 42.

94. ibid., para. 43.

95. ibid., paras. 44 to 48.

96. ibid., para. 49.

97. ibid., para. 50.

98. ibid., para. 52.

99. ibid., para. 53, and Governing Body, 261st Session, Geneva, Nov. 1994, Record of decisions (doc. GB.261/205), para. 61.

100. See para. 134 above.

101. See para. 138 above.

102. See para. 154 above.

103. ibid.

104. ILC, 83rd Session, Geneva, 1986, Provisional Record, p. 14/56.

105. ibid., pp. 14/56 to 14/58.

106. ibid., p. 14/58.

107. ibid., pp. 14/58 and 14/46.

108. See para. 1 above.

109. However, the human rights situation in Myanmar had already been considered by the Sub-Commission on the Prevention of Discrimination and Protection of Minorities in 1988 and 1989 and gave rise to a resolution by the Commission on Human Rights in 1989: resolution 1989/112 of 8 Mar. 1989.

110. UN doc. UNGA A/RES/46/132 of 17 Dec. 1991.

111. ibid., para. 2. The General Assembly reiterated its concern in 1992 and 1993: UN doc. UNGA A/RES/47/144 of 18 Dec. 1992 and UN doc. UNGA A/RES/48/150 of 20 Dec. 1993.

112. UN doc. UNGA A/RES/49/197 of 23 Dec. 1994.

113. ibid., para. 10.

114. ibid., para. 12. The resolutions adopted in 1995, 1996 and 1997 are to the same effect: UN doc. UNGA A/RES/50/194 of 22 Dec. 1995; UN doc. UNGA A/RES/51/117 of 12 Dec. 1996; UN doc. UNGA A/RES/52/137 of 12 Dec. 1997.

115. Consideration of the question of forced labour by other subsidiary bodies of the Commission on Human Rights, namely the Special Rapporteurs on the implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief, on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and on Extra-judicial, Summary or Arbitrary Executions is described below in section (iv) Other United Nations bodies.

116. Commission on Human Rights, resolution 1992/58 of 3 Mar. 1992. The decision of the Commission was approved by the Economic and Social Council on 20 July 1992 in its resolution 1992/235. The Economic and Social Council renewed its approval in 1993 (resolution 1993/278 of 28 July 1993), 1994 (resolution 1994/269 of 25 July 1994), 1995 (resolution 1995/283 of 25 July 1995), 1996 (resolution 1996/285 of 24 July 1996) and 1997 (resolution 1997/272 of 22 July 1997).

117. Preliminary report prepared by Professor Yozo Yokota (Japan), Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar, in accordance with paragraph 3 of Commission resolution 1992/58 of 3 Mar. 1992 and Economic and Social Council decision 1992/235 of 20 July 1992, UN doc. UNGA A/47/651 of 13 Nov. 1992. The preponderance of cases concerned members of the Muslim population of northern Rakhine State, as well as those belonging to the Karen community: ibid., para. 46 in fine.

118. ibid., particularly paras. 46 to 52. The Special Rapporteur has referred to the case of soldiers from a military unit referred to by name which allegedly went through a village in Rakhine State recruiting people for forced labour (para. 48).

119. Report on the situation of human rights in Myanmar, prepared by Mr. Yozo Yokota, Special Rapporteur of the Commission on Human Rights, in accordance with Commission resolution 1992/58, UN doc. CES E/CN.4/1993/37 of 17 Feb. 1993. The Special Rapporteur subsequently visited the country on three occasions, namely from 9 to 16 Nov. 1993, from 7 to 16 Nov. 1994 and from 8 to 16 Nov. 1995.

120. ibid., paras. 79-85.

121. ibid., paras. 101-104.

122. These acts are alleged to have occurred in particular in the Kayah, Kayin, Mon, Rakhine and Shan States: ibid., paras. 101-103 and 231-234.

123. ibid., para. 232.

124. ibid., para. 104.

125. In this respect, reference was made to the Aungban-Loikaw railroad.

126. Report on the situation of human rights in Myanmar, op. cit., note 119, paras. 85 and 234.

127. ibid., paras. 135 and 235-236.

128. ibid., para. 136.

129. ibid., para. 228. The other categories included citizens wishing to participate freely in the political process and the transition to the democratically elected civilian government as well as ethnic minorities, against whom oppressive measures were imposed.

130. ibid., para. 242(f).

131. ibid., para. 242(k).

132. See, for example: interim report prepared by Mr. Yozo Yokota, Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar, in accordance with para. 16 of the Commission on Human Rights resolution 1993/73 of 10 Mar. 1993 and Economic and Social Council Decision 1993/278 of 28 July 1993, UN doc. UNGA A/48/578 of 16 Nov. 1993, para. 35; Report on the situation of human rights in Myanmar, prepared by Mr. Yozo Yokota, Special Rapporteur, in accordance with Commission resolution 1993/73, UN doc. CES E/CN.4/1994/57 of 16 Feb. 1994, para. 55.

133. Interim report prepared by Mr. Yozo Yokota, Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar in accordance with paragraph 20 of Commission on Human Rights resolution 1994/85 of 9 Mar. 1994 and Economic and Social Council decision 1994/269 of 25 July 1994, UN doc. UNGA A/49/594 of 28 Oct. 1994 and UN doc. UNGA A/49/594/Add.1 of 9 Nov. 1994.

134. ibid., para. 19.

135. ibid., para. 20.

136. ibid., para. 21.

137. According to reports received, "each family from the villages along the line and also from surrounding areas is obliged to supply one worker for 15 days at a time in rotating shifts. Almost all the civilian families in Ye township, Thanbyuzayat township and Mudon township of Mon State, as well as Yebyu township, Dawei (Tavoy) township, Launglon township and Thayetchaung township of Tanintharyi Division, are said to have been forced to contribute labour for the railway's construction. The workers are reportedly required to bring their own food, provide their own shelter, ensure their own health and medical needs, use their own tools and, in some cases, also supply materials for the construction of the railway. Allegations have also been made that the military supervising the construction of the railway demands money for the use of bulldozers available at construction sites; the fuel needed for use of the bulldozers is also said to be sold by the military. [...] Reports received consistently estimate that over 100,000 persons have had to contribute their labour for the railway project without any compensation. Elderly persons, children and pregnant women are also reported to have been seen as labourers along the railway. Several persons are also reported to have died from illness and accidents caused by poor conditions at construction sites. [...] The land along the railway's route is said to have been confiscated from its owners without compensation." ibid., para. 22.

138. ibid., para. 23.

139. ibid., para. 24.

140. Interim report prepared by Mr. Yozo Yokota, Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar, in accordance with Commission on Human Rights resolution 1995/72 of 8 Mar. 1995, and Economic and Social Council decision 1995/283 of 25 July 1995, UN doc. UNGA A/50/568 of 16 Oct. 1995.

141. Report on the situation of human rights in Myanmar, prepared by the Special Rapporteur, Mr. Yozo Yokota, in accordance with Commission resolution 1994/85, UN doc. CES E/CN.4/1995/65 of 12 Jan. 1995.

142. The railway lines which were under construction in 1995 and for which the authorities reportedly made use of forced labour include the Pakokku-Gangaw-Kalaymyo-Tamu line and the Ye-Dawei (Tavoy) line. People were allegedly not only forced to contribute their labour but also the necessary materials.

143. Report on the situation of human rights in Myanmar, prepared by Mr. Yozo Yokota, Special Rapporteur of the Commission on Human Rights, in accordance with Commission resolution 1995/72, UN doc. CES E/CN.4/1996/65 of 5 Feb. 1996.

144. ibid., paras. 141-142. Various sources reported an especially intensive use of forced labour in relation to railway construction projects. More than 50,000 people were reportedly being forced to work on a new section of the railway from Ye to Kanbauk. Forced labour was also allegedly being used to repair the highway in Bago township, with the work reportedly involving carrying stones from a quarry, levelling work and the laying of tar, with each family having to pay 50 kyat every two weeks as their contribution to the construction of this highway.

145. ibid., para. 173.

146. ibid., para. 180.

147. Interim report on the situation of human rights in Myanmar, prepared by Judge Rajsoomer Lallah, Special Rapporteur of the Commission on Human Rights, in accordance with resolution 1996/80 of 23 Apr. 1996, UN doc. UNGA A/51/466 of 8 Oct. 1996.

148. ibid., particularly in paras. 45 and 51.

149. ibid., paras. 126-145.

150. ibid. The Special Rapporteur cited some illustrations, namely: the people of Ahphyauk town in Ayeyarwady Division were reported to have been made to work on an irrigation canal with a length of about 25 miles. Those who refused were fined 1,300 kyat or were prosecuted under section 12 of the Village Act and, if found guilty, sentenced to one month's imprisonment (para. 133); a man from Hinthada in Ayeyarwady Division was reportedly beaten because, being too old, he had refused to contribute labour to build an embankment (para. 134); in May 1995, about 200 villagers were reportedly ordered by the military authorities to go to Heinze Island for two weeks, where they had to clear ground, construct a helipad and build various barracks. The workers received no wages and were forced to pay for the petrol used in the boat which took them to the island. Villagers who refused to go were fined or arrested and sent to conflict areas to serve as porters for the military (para. 135); in Aug. and Sep. 1995, a Mon farmer from Yebyu township was allegedly forced to build army buildings near the pipeline at Ohnbinkwin and in Kadaik harbour. He was also reportedly forced to cut trees and clear bushes for the road (para. 136); the authorities reportedly used forced labour to build a Buddhist museum in the town of Sittway (para. 137); villagers from Pathein, Ayeyarwady Division, were allegedly forced to work on the construction of a new road from Nga Saw to Talakwa (para. 138); in Mar. 1996, villagers were allegedly forced to cut trees and carry timber to the sawmill in Kyet Paung (Hlaingbwe township, Kayin State), and some villagers also had to work at the sawmill (para. 139).

151. ibid. The reports received by the Special Rapporteur showed that porters could be divided into several categories, i.e. operations porters, taken for the duration of a specific military operation; permanent or shift porters, provided by villages on written military orders who work a set length of time and must be replaced by their village; emergency porters, demanded from villages for special tasks such as monthly rice delivery to troops; porters of opportunity -- often farmers met on the road and kept on in case they are needed. Porters are also reported to include civilians taken in urban or semi-urban areas as a sanction by the authorities, convict porters and paid porters replacing more affluent villagers who are able to pay for their services (para. 140).

152. ibid.

153. ibid. The Special Rapporteur indicated various cases of forced portering: on 10 Dec. 1995, a group of soldiers reportedly arrived at Meh Bleh Wah Kee in Myawady township in Kayin State, arrested ten persons who were forced to carry very heavy army equipment across the Dawna mountains to Ber Kho (para. 143); a farmer from Mon State was reportedly caught by the military, tied up and forced to carry army material for 17 days (para. 144); in Mar. 1996, a fisherman from Taung Kun in Ye township (Mon State) was allegedly forced to serve as a porter for the army for 15 days (para. 145). The Special Rapporteur noted that porters are reportedly civilians forced to do work which does not fall under any of the exceptions envisaged in the Forced Labour Convention, 1930 (No. 29).

154. ibid., para. 153(14).

155. ibid., para. 153(15).

156. ibid., para. 153(17).

157. ibid., para. 153(14). The Special Rapporteur reiterated his conclusions in subsequent reports.

158. Report of the Special Rapporteur, Mr. Rajsoomer Lallah, submitted in accordance with the Commission on Human Rights resolution 1996/80, UN doc. CES E/CN.4/1997/64 of 6 Feb. 1997.

159. ibid., para. 80.

160. Interim report on the situation of human rights in Myanmar, prepared by Mr. Rajsoomer Lallah, Special Rapporteur of the Commission on Human Rights, in accordance with General Assembly resolution 51/117 of 12 Dec. 1996 and Economic and Social Council decision 1997/272 of 22 July 1997, UN doc. UNGA A/52/484 of 16 Oct. 1997. See in particular paras. 50-68.

161. ibid., para. 57. Porters were also reported to have accompanied the offensives in Shan and Kayah States in 1996 and 1997. As a result of the ceasefires with the Kachin (1994) and a number of other groups, and the surrender of Khun Sa's Mong Tai army in 1996, there had reportedly been a reduction in the number of actual front line operations. The Special Rapporteur reviewed other cases brought to his knowledge, including one on 28 June 1997, when 17 villagers were reportedly seized by troops at the village of Ho Thi, in Laikha township and were forced to carry ammunition and other military equipment (para. 58).

162. ibid., para. 59. In this respect, the Special Rapporteur received reports about forced labour in Thabaung township, Ayeyarwady Division, according to which it seemed that all the villages in the community had to construct at their own expense temporary camps, barracks, stores, houses and furniture. They also had to construct a road for which each family had to provide soil. On 4 July 1997, villagers who had been forced to relocate in Kunhing (Shan State) in 1997, were reportedly forced to cut bamboo, build four layers of fences around the military camp and dig trenches between the layers of fences (paras. 60 and 61).

163. ibid., para. 62.

164. ibid., para. 63. The Special Rapporteur summarized the information contained in reports received by him as follows: in Oct. 1996, the authorities used forced labour to build a road from Ywamon to Zeebyugon in Natmauk township. People from more than 40 villages in Natmauk were made to take part in the project. Households that could not supply labourers were made to pay. Thirteen people, including two women, were reported to have been arrested on 15 Jan. 1997 because they refused to take part in a forced labour project to build a road from Pathein to Talakwa to Morton Point in Ayeyarwady Division. Each household in village-tracts had to provide one-and-a-half baskets of rock. Those households which could not do so had to pay 2,000 kyat to the Village-tract Law and Order Restoration Council (paras. 64 and 65). The farmers of Wuntho township in Sagaing Division were reported to have had to provide forced labour to build a stupa in Kyingyi village (para. 66). Forced contributions were required for the construction of roads (Kanthagyi-Kyaungdawya, Salin, Natyegan) and a bridge (Man Bridge) in Pwinbyu township, Magway Division (para. 67). Forced labour was also reportedly used in Kawhmu township (Yangon Division) in Dec. 1996 for the construction of a road to Htamanaing village (para. 68). The workers were regularly subjected to ill treatment.

165. Report of the Special Rapporteur, Mr. Rajsoomer Lallah, submitted in accordance with Commission on Human Rights resolution 1997/64, UN doc. CES E/CN.4/1998/70 of 15 Jan. 1998.

166. ibid., para. 65.

167. ibid., para. 66. In this connection, the Special Rapporteur referred to the following case: on 8 June 1997, troops from Mongpan (eastern Shan State) allegedly arrested 17 villagers (ten men and seven women) at Ter Hung village and forced them to carry military supplies from Kengtung to Mongpan. When they arrived, the men were released while the women were detained all night and were reportedly gang-raped before being released the next morning.

168. Commission on Human Rights resolution 1993/73 of 10 Mar. 1993, preamble (7); Commission on Human Rights resolution 1994/85 of 9 Mar. 1994, preamble (6); Commission on Human Rights resolution 1995/72 of 8 Mar. 1995, preamble (8); Commission on Human Rights resolution 1996/80 of 23 Apr. 1996, preamble (5) and (7). In 1997, the Commission on Human Rights expressed its deep concern "at the continuing violations of human rights in Myanmar, as reported by the Special Rapporteur, including [...] forced labour by children as well as adults, including portering for the military": Commission on Human Rights resolution 1997/64, para. 2(a).

169. Resolution 1993/73, para. 6; resolution 1994/85, para. 7; resolution 1995/72, para. 11; resolution 1996/80, para. 12.

170. Resolution 1993/73, para. 11; resolution 1994/85, para. 13; resolution 1995/72, para. 16; resolution 1996/80, para. 14; resolution 1997/64, para. 3(g) (in this resolution, the Commission explicitly calls upon the Government to cooperate more closely with the ILO, "in particular with the Commission of Inquiry appointed in accordance with art. 26 of the Constitution of the International Labour Organization"); and resolution 1998/63 of 21 Apr. 1998, para. 4(j).

171. Resolution 1994/85, para. 8; resolution 1995/72, para. 12; resolution 1996/80, para. 12; resolution 1997/64, para. 3(g); resolution 1998/63 of 21 Apr. 1998, para. 4(l).

172. Resolution 1997/64, para. 2(g). In 1998, it expressed its deep concern at continuing violations of the rights of children by recruitment of children into forced labour programmes and into the armed forces: resolution 1998/63, para. 3(d).

173. Commission on Human Rights resolution 1998/63, para. 3(a).

174. Resolution 1998/63, para. 5(a) and (d).

175. UN doc. UNGA A/RES/48/150 of 23 Dec. 1993, para. 15.

176. As the Special Rapporteur on Myanmar already had the mandate to "establish direct contacts with the Government and people of Myanmar, with a view to examining the situation of human rights in Myanmar" and to report to the General Assembly, the Secretary-General therefore interpreted his role "as being not one of fact-finding, but rather one of good offices in assisting the Government of Myanmar to respond to the concerns of other member States": Report of the Secretary-General on the situation of human rights in Myanmar, UN doc. UNGA A/49/716 of 25 Nov. 1994, para. 2.

177. They were not able to visit the country in 1996: Report of the Secretary-General on the situation of human rights in Myanmar, UN doc. CES E/CN.4/1996/157 of 17 Apr. 1996 and Report of the Secretary-General to the General Assembly on the situation of human rights in Myanmar, UN doc. UNGA A/51/660 of 8 Nov. 1996.

178. See in particular report to the General Assembly, ibid., para. 13.

179. Report to the Commission on Human Rights, op. cit., note 177, para. 15; report to the General Assembly, ibid., para. 13; report to the Commission on Human Rights on the situation of human rights in Myanmar, UN doc. CES E/CN.4/1997/129 of 27 Mar. 1997, para. 16; report to the General Assembly on the situation of human rights in Myanmar, UN doc. UNGA A/52/587 of 10 Nov. 1997, para. 14; and report to the Commission on Human Rights on the situation of human rights in Myanmar, UN doc. CES E/CN.4/1998/163 of 9 Apr. 1998, para. 16.

180. Concluding observations of the Committee on the Rights of the Child: Myanmar, UN doc. CRC/C/15/Add.69 of 24 Jan. 1997.

181. ibid., paras. 21 and 22.

182. ibid., para. 25.

183. ibid., paras. 42 and 45.

184. Report of the Special Rapporteur on the Implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, UN doc. CES E/CN.4/1993/62 of 6 Jan. 1993, paras. 45-47.

185. Report of the Special Rapporteur, Mr. Abdelfattah Amor, on the Implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, UN doc. CES E/CN.4/1995/91 of 22 Dec. 1994, p. 64.

186. Report of the Special Rapporteur, Mr. P. Kooijmans, on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN doc. CES E/CN.4/1993/26 of 15 Dec. 1992, paras. 335-350; Report of the Special Rapporteur, Mr. Nigel S. Rodley on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN doc. CES E/CN.4/1994/31 of 6 Jan. 1994, paras. 399-403; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN doc. CES E/CN.4/1995/34 of 12 Jan. 1995, paras. 492-500.

187. Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, UN doc. CES E/CN.4/1995/61 of 14 Dec. 1994, para. 230.

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.⁽¹⁸⁸⁾ Many conventions and international treaties prohibit recourse to slavery, both in times of peace and during periods of armed conflict. Although certain instruments, and particularly those adopted at the beginning of the nineteenth century, define slavery in a restrictive manner, the prohibition of slavery must now be understood as covering all contemporary manifestations of this practice.

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

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

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

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

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

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

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

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

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

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

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

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

(a) Compulsory military service

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

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

(b) Normal civic obligations

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

(c) Prison labour

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

(d) Emergencies

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

(e) Minor communal service

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

the services must be "minor services", i.e. relate primarily to maintenance work and, in exceptional cases, to the erection of certain buildings intended to improve the social conditions of the population of the community itself (a small school, a medical consultation and treatment room, etc.);
the services must be "communal services" performed "in the direct interest of the community", and not relate to the execution of works intended to benefit a wider group;
the "members of the community" (i.e. the community which has to perform the services) or their "direct" representatives (e.g. the village council) must "have the right to be consulted in regard to the need for such services".⁽²⁴¹⁾

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

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

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

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

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

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

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

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

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

10. Brief description of Myanmar

(1) General presentation

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

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

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

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

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

(2) Historical background

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

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

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

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

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

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

(3) Administrative structure

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

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

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

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

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

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

(4) Opposition forces

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

11. Legislation of Myanmar
relevant to the case

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

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

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

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

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

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

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

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

239. Under Section 11 of the Village Act:

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

[...]

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

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

Under section 12 of the same Act:

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

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

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

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

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

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

[...]

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

Section 9A of the same Act provides that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(2) Restrictions on the freedom
of movement and citizenship

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

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

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

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

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

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

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

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

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

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

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

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

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

(3) Compulsory military service
and forced conscription

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

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

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

(4) Sanctions for illegally imposing forced
or compulsory labour

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B. General pattern of conduct by
Myanmar authorities

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Part IV (cont.)

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

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

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

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

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

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

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

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

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

197. Art. 1(1).

198. Arts. 2 and 6.

199. Art. 5.

200. Art. 5(3).

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

202. Art. 25 of Convention No. 29.

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

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

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

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

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

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

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

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

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

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

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

[...]

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

[...]

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

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

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

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

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

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

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

218. Art. 25 of the Convention.

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

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

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

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

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

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

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

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

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

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

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

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

231. See para. 208 above.

232. See para. 212 below.

233. See para. 213 below.

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

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

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

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

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

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

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

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

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

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

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

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

246. Arts. 7 and 8.

247. Arts. 9 and 10.

248. Arts. 9 to 12.

249. Arts. 13 to 17.

250. Arts. 18 and 19.

251. Arts. 4 and 6.

252. Art. 11.

253. Art. 19.

254. Art. 21.

255. Arts. 7 and 8.

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

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

258. See paras. 198 to 204 above.

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

260. Sometimes also referred to as "quarters".

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

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

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

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

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

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

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

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

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

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

271. ibid.

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

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

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

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

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

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

278. See paras. 121 to 123 above.

279. See para. 145 above.

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

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

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

283. See para. 237 above.

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

285. Doc. H10 at p. 5858.

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

287. Doc. H10 at p. 5871.

288. ibid., at p. 5869.

289. See para. 242 above.

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

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

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

293. Doc. H10 at p. 5870.

294. e.g. para. 112 above.

295. See paras. 237 et seq. above.

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

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

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

299. ibid.

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

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

302. Human Rights Watch/Asia, ibid.

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

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

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

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

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

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

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

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

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

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

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

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

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

316. See paras. 300-350 below.

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

318. See paras. 374-388 below.

319. See paras. 389-393 below.

320. See paras. 394-407 below.

321. See paras. 408-443 below.

322. See paras. 444-457 below.

323. See paras. 458-461 below.

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

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

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

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

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

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

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

331. See order 2 in Appendix XI.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Examination of the case by the Commission

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

299. This part of the chapter 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

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.⁽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.⁽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.⁽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.⁽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.⁽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.⁽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.⁽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.⁽³⁵⁶⁾ The only way to avoid being taken was to pay a substantial sum of money (of the order of several thousand kyat⁽²⁵⁷⁾) 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.⁽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.⁽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.⁽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.⁽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.⁽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.⁽³⁶³⁾ There were cases where pregnant women and nursing mothers were taken by force to work as porters.⁽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.⁽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.⁽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".⁽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.⁽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.⁽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.⁽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.⁽³⁷¹⁾ Injuries to the feet were also common.⁽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.⁽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.⁽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,⁽³⁷⁵⁾ sometimes accompanied by a little salt, some chillies, or some watery yellow-pea curry.⁽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.⁽³⁷⁷⁾ Porters who had asked to drink from soldiers' water bottles had been beaten.⁽³⁷⁸⁾

317. Female porters were sometimes raped or otherwise sexually abused by soldiers.⁽³⁷⁹⁾ Porters who walked too slowly were regularly beaten with sticks, punched, kicked, hit with rifle butts or prodded with bayonets.⁽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.⁽³⁸¹⁾ The killing of porters who could not continue appeared to be more common in potential conflict areas.⁽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.⁽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.⁽³⁸⁴⁾

319. Porters were also exposed to dangerous combat situations.⁽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.⁽³⁸⁶⁾ There were also reportedly cases of soldiers forcing porters to exchange clothes with them, in order to draw enemy fire.⁽³⁸⁷⁾ Many porters were killed or injured in this way.⁽³⁸⁸⁾ Compensation for death or injury, or medical treatment in the event of injury, appeared to be minimal.⁽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.⁽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.⁽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.⁽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.⁽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.⁽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⁽³⁹⁵⁾ and used as porters.⁽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.⁽³⁹⁷⁾

326. There was a considerable amount of information relating to Kayah State.⁽³⁹⁸⁾ Porters were requisitioned by various military units from a number of townships,⁽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,⁽⁴⁰⁰⁾ involving a large number of military units as well as the Democratic Kayin Buddhist Army (DKBA) militia.⁽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.⁽⁴⁰²⁾ Porters were also used by soldiers to transport back to their camps goods which had been looted from villages.⁽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.⁽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.⁽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.⁽⁴⁰⁶⁾ The same thing happened in 1994 and 1995, for another offensive in the same area.⁽⁴⁰⁷⁾

330. A large volume of information was also received relating to Mon State.⁽⁴⁰⁸⁾ Porters were rounded up or used by various military units in a number of different areas.⁽⁴⁰⁹⁾ As discussed further below,⁽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.⁽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,⁽⁴¹²⁾ though there was information of people being requisitioned by various military units⁽⁴¹³⁾ in most parts of the Division and forced to work as porters.⁽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,⁽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.⁽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.⁽⁴¹⁷⁾ Porters were similarly used for various portering tasks in Kachin State,⁽⁴¹⁸⁾ Sagaing Division⁽⁴¹⁹⁾ and Ayeyarwady Division.⁽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.⁽⁴²¹⁾ Civilians were also forced to act as sentries, for example at a NaSaKa camp in Maungdaw township in 1992.⁽⁴²²⁾

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.⁽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.⁽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.⁽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.⁽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.⁽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⁽⁴²⁸⁾ with instructions to provide a given number of porters within an often very short time-limit.⁽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;⁽⁴³⁰⁾ these threats are sometimes expressed by the attachment of a bullet, a piece of charcoal or a chilli⁽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.⁽⁴³²⁾

341. The second method for recruiting porters consists of the military forcibly apprehending or seizing the persons they need.⁽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.⁽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.⁽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.⁽⁴³⁶⁾ A refusal to do the portering required is absolutely inconceivable as it is systematically met with physical punishment⁽⁴³⁷⁾ or fines.⁽⁴³⁸⁾

344. The porters have to transport ammunition, equipment and food, making up, in the case of the men, a load weighing over 30 kilos.⁽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.⁽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⁽⁴⁴¹⁾ and Shan opposition groups.⁽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.⁽⁴⁴³⁾

345. In all portering, the porters are forced to march from morning to evening, often not being allowed a moment's rest.⁽⁴⁴⁴⁾ One deserter estimated that 20 to 30 porters were required for 30 soldiers on a routine journey.⁽⁴⁴⁵⁾ However, the number of porters increases with the scale of the military operation in which the division, battalion or company is taking part.⁽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;⁽⁴⁴⁷⁾ by putting them in front, the military also use them to detect mines which might explode as they pass.⁽⁴⁴⁸⁾ During armed conflict, the porters are used as human shields,⁽⁴⁴⁹⁾ many of them getting killed in the process.⁽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.⁽⁴⁵¹⁾

347. The length of time of a portering journey in the eastern part of the country varies and can stretch over several months⁽⁴⁵²⁾ whereas portering assignments described by Rohingyas generally last less than a week but may be repeated several times a month.⁽⁴⁵³⁾ The time span which may be 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.⁽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.⁽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,⁽⁴⁵⁶⁾ and if they are fed, the food is insufficient and of poor quality.⁽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.⁽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.⁽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.⁽⁴⁶⁰⁾ On other occasions, the military did not hesitate to shoot porters⁽⁴⁶¹⁾ because they were too weak, had tried to escape or simply with a view to inspiring fear and terror in the other porters.⁽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.⁽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.⁽⁴⁶⁴⁾ Others indicated that it was possible to send a substitute to do the portering in their place.⁽⁴⁶⁵⁾

(2) Military camp work

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.⁽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.⁽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.⁽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,⁽⁴⁶⁹⁾ including camps at relocation sites.⁽⁴⁷⁰⁾ The information covered a period from 1992 to 1998.⁽⁴⁷¹⁾

357. A considerable amount of information was provided to the Commission relating to construction, repair and servicing of military camps in Kayah State.⁽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.⁽⁴⁷³⁾ Other villagers were forced to work at camps as messengers or for carrying out other servicing work.⁽⁴⁷⁴⁾

358. A large volume of information was provided relating to Kayin State and neighbouring parts of Bago Division.⁽⁴⁷⁵⁾ Civilians were forced to build, repair or service a large number of military installations over the period from 1992 to 1997.⁽⁴⁷⁶⁾ The information included copies of several orders from the authorities requiring villages to provide labour for this work.⁽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.⁽⁴⁷⁸⁾ The information included copies of orders from the authorities requiring labour to be provided for this work.⁽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⁽⁴⁸⁰⁾ in several townships⁽⁴⁸¹⁾ covering a large part of the Division.⁽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⁽⁴⁸³⁾ in Sittway (Akyab).⁽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⁽⁴⁸⁵⁾ and constructing houses (so-called "model villages").⁽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,⁽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.⁽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.⁽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.⁽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⁽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.⁽⁴⁹²⁾

(3) Other work in support of the military

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⁽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,⁽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;⁽⁴⁹⁵⁾ the village heads have no choice but to comply with the prescribed conditions on pain of fines, if not of physical punishment.⁽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.⁽⁴⁹⁷⁾

368. As a rule, one person per family is requisitioned to work on military camps.⁽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.⁽⁴⁹⁹⁾ Children who would otherwise be at school were sometimes sent by their parents to do this work.⁽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.⁽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.⁽⁵⁰²⁾ The workers must also attend to the fortification of the camps by digging trenches⁽⁵⁰³⁾ or installing bamboo spikes,⁽⁵⁰⁴⁾ and other defensive traps.⁽⁵⁰⁵⁾

370. There are also many types of renovation and servicing work. The workers may be told to renovate buildings and rebuild fences.⁽⁵⁰⁶⁾ They may also have to provide their own carts to transport equipment or rations,⁽⁵⁰⁷⁾ supply the camp with wood, bamboo⁽⁵⁰⁸⁾ and water⁽⁵⁰⁹⁾ or provide certain services such as cleaning,⁽⁵¹⁰⁾ cooking,⁽⁵¹¹⁾ acting as messengers⁽⁵¹²⁾ or weeding.⁽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,⁽⁵¹⁴⁾ and sometimes even have to bring food to the military.⁽⁵¹⁵⁾ The workers are neither paid⁽⁵¹⁶⁾ nor compensated for the materials that they have had to provide.⁽⁵¹⁷⁾ Some have been subjected to ill-treatment resulting in serious injuries⁽⁵¹⁸⁾ and most are constantly exposed to insults and violence.⁽⁵¹⁹⁾ Abuses of a sexual nature would also appear to have been perpetrated in some cases by the military.⁽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,⁽⁵²¹⁾ or a substitute provided.⁽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.⁽⁵²³⁾

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.⁽⁵²⁴⁾ If villagers did find mines, the village would often face retaliation.⁽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.⁽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.⁽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.⁽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⁽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,⁽⁵³⁰⁾ those parts of Bago Division near to the border with Kayin State,⁽⁵³¹⁾ and Mon State.⁽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.⁽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,⁽⁵³⁴⁾ Kayah State,⁽⁵³⁵⁾ Kayin State,⁽⁵³⁶⁾ Mon State⁽⁵³⁷⁾ and Tanintharyi Division,⁽⁵³⁸⁾ and from the western part in Sagaing Division⁽⁵³⁹⁾ and Chin State.⁽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,⁽⁵⁴¹⁾ Bago Division,⁽⁵⁴²⁾ and Sagaing Division.⁽⁵⁴³⁾ The information covered a period from 1994 to 1996.

382. Twenty-two witnesses⁽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⁽⁵⁴⁵⁾ or railways,⁽⁵⁴⁶⁾ at the entrance to villages⁽⁵⁴⁷⁾ or in the vicinity of military camps, which they had often previously had to construct.⁽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.⁽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.⁽⁵⁵⁰⁾ As a rule, one person per family is sent,⁽⁵⁵¹⁾ irrespective of whether they are men, women or children.⁽⁵⁵²⁾

385. The persons on sentry duty work in groups⁽⁵⁵³⁾ during a period which may range from one to seven days.⁽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,⁽⁵⁵⁵⁾ or even reprisals against the entire village.⁽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.⁽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.⁽⁵⁵⁸⁾ This is dangerous work; witnesses claimed to have seen people injured or even killed by exploding mines.⁽⁵⁵⁹⁾

387. Persons performing guard duty are neither paid⁽⁵⁶⁰⁾ nor fed⁽⁵⁶¹⁾ and are regularly subjected to insults.⁽⁵⁶²⁾ It is, however, possible to avoid performing this work by paying the military who require it⁽⁵⁶³⁾ or by sending a substitute.⁽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.⁽⁵⁶⁵⁾

(4) Forced recruitment

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,⁽⁵⁶⁶⁾ but was essentially arbitrary.⁽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.⁽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.⁽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.⁽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.⁽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.⁽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.⁽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.⁽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.⁽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.⁽⁵⁷⁶⁾

(a) Information provided to the Commission

393. Eight witnesses who deserted the Tatmadaw between the early 1980s and 1996 gave testimony before the Commission.⁽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.⁽⁵⁷⁸⁾ If found, deserters are usually put in jail or, if they deserted with arms, executed.⁽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.

Part IV (cont.)

349. See para. 19 of the response of the Government of Myanmar to the memorandum of the Special Rapporteur, transmitted to the Special Rapporteur in a note verbale dated 4 Oct. 1995 by the Permanent Mission of Myanmar to the United Nations Office at Geneva, UN doc. UNGA A/50/568 (16 Oct. 1995), p. 26.

350. Human Rights Watch/Asia, 001-0057, 001-0059; Mon Information Service, M57-7432; Heppner, XII/14; Human Rights Watch/Asia, Abuses Linked to the Fall of Manerplaw, Mar. 1995, p. 7.

351. Karen Human Rights Group, 001-1462, 016-2149, 032-2422; Min Lwin, III/16; Liddell, V/35-36; Lin, VII/39; Heppner, XII/18-19.

352. Human Rights Watch/Asia, Abuses Linked to the Fall of Manerplaw, op. cit., note 350, p. 7.

353. Heppner, XII/27-28.

354. Mon Information Service, M57-7432; Heppner, XII/15.

355. Karen Human Rights Group, 016-2147; Human Rights Watch/Asia, 065-2572 to 2573; Lin, VII/54; Heppner, XII/25.

356. Lin, VII/26; Heppner, XII/28.

357. This is a substantial sum for most people in Myanmar. For an indication of purchasing power, see under "kyat" in Appendix X.

358. Mon Information Service, M57-7432; Karen Human Rights Group, 032-2422.

359. Karen Human Rights Group, 016-2148, 032-2429; Liddell, V/23.

360. Karen Human Rights Group, 001-1474; Guest, II/24.

361. Amnesty International, 088-3588.

362. Heppner, XII/15-16.

363. Karen Human Rights Group, 001-0028; Guest, II/12; Ka Hsaw Wa, X/13.

364. Karen Human Rights Group, 001-1461 to 1462.

365. Guest, II/12-13.

366. Guest, II/10-11; Ka Hsaw Wa, X/15.

367. See paras. 294-295 above.

368. Heppner, XII/64.

369. In one of the documents submitted to the Commission it was noted that hired porters perhaps face less abuse from soldiers, since they were accustomed to the work and, being paid, they were in a position to bribe soldiers to get better food or treatment. See Karen Human Rights Group, 016-2149.

370. Karen Human Rights Group, 016-2147; Min Lwin, III/16; Heppner, XII/16.

371. See photos at 155-5474, 156-5517; see also Karen Human Rights Group, 032-2422; Heppner, XIII/5.

372. Lin, VII/52-53.

373. In one case an epileptic woman was taken as a porter, even though her sister explained this to the soldiers, and she died after the first day (Liddell, V/11); in another case, an elderly Mon man was taken as a porter and forced to carry heavy loads of ammunition, resulting in serious injuries (Lin, VII/26). See also Karen Human Rights Group, 001-1461 to 1462, 016-2149.

374. Human Rights Watch/Asia, Abuses Linked to the Fall of Manerplaw, op. cit., note 350, p. 9.

375. "Tin" refers to condensed milk tins of a standard size, which are the usual measure for small quantities of dry goods in Myanmar. One tin is equal to approximately 300 grams of uncooked rice. By contrast, the World Food Programme reportedly estimated that a family of six to eight persons required 6 kg of rice per day, or up to 1 kg per person (see Human Rights Watch/Asia, H07-5806).

376. Liddell, V/8.

377. Karen Human Rights Group, 016-2147; Heppner, XII/16; Human Rights Watch/Asia, Abuses Linked to the Fall of Manerplaw, op. cit., note 350, p. 9.

378. Liddell, V/8.

379. Human Rights Watch/Asia, 001-0059; Liddell, V/6-7; Ka Hsaw Wa, X/11-12.

380. Human Rights Watch/Asia, 001-0057; Guest, II/11; Min Lwin, III/18-19; Liddell, V/8; Heppner, XII/16; Human Rights Watch/Asia, Abuses Linked to the Fall of Manerplaw, op. cit., note 350, pp. 9-10.

381. Human Rights Watch/Asia, 001-0060; Guest, II/10; Ka Hsaw Wa, X/14-15; Heppner, XII/16-18; Human Rights Watch/Asia, Abuses Linked to the Fall of Manerplaw, ibid., pp. 9-11.

382. This might be done to prevent them from providing intelligence to hostile forces. Karen Human Rights Group, 032-2422; Heppner, XII/16.

383. Karen Human Rights Group, 032-2422; Heppner, XII/16.

384. Guest, II/24; Liddell, V/8; Lin, VII/41-42.

385. Human Rights Watch/Asia, 001-0059, 065-2971; Karen Human Rights Group, 001-1462; Ka Hsaw Wa, X/17.

386. Min Lwin, III/16.

387. Heppner, XII/18-19.

388. Human Rights Watch/Asia, Abuses Linked to the Fall of Manerplaw, op. cit., note 350, pp. 6-7, 9.

389. Human Rights Watch/Asia, Abuses Linked to the Fall of Manerplaw, ibid., p. 10.

390. Human Rights Watch/Asia, Abuses Linked to the Fall of Manerplaw, ibid., pp. 8-9.

391. Min Lwin, III/16.

392. Karen Human Rights Group, 016-2147; Ka Hsaw Wa, X/16.

393. Karen Human Rights Group, 001-1469, 032-2422; Heppner, XII/17.

394. See, for example, Liddell, V/11-12; Heppner, XII/17-18; Amnesty International, 001-0505, 090-3653; Images Asia, 001-0216; Karen Human Rights Group, 001-0187, 001-0189, 001-0196 to 0197, 001-0905, 001-0921.

395. The areas mentioned covered the following townships: Hsi Hseng (by LIB 424), Kengtung, Kunhing, Laikha (by LIB 515), Langkho, Mongnai (by LIB 520), Mong Hsat, Mong Yai (by Light Infantry Regiment 31), Namhsam (by LIB 518), and Tachilek.

396. Human Rights Watch/Asia, 001-0059 to 60; Shan Human Rights Foundation, 001-0176, 001-0369, 001-0417, 144-4536 to 4537, 145-4581 to 4583; Amnesty International, 001-0505 to 0506, 091-3693, 099-3892, 168-8397 to 8398.

397. S.H.A.N/Shan Human Rights Foundation, 001-0170.

398. Karen Human Rights Group, 001-0305 to 0306, 001-0320, 001-0324, 001-1970 to 1972, 154-5095; Amnesty International, 090-3660, 099-3891 to 3892, 099-3896; Images Asia, M37-7039.

399. Areas mentioned included Loikaw town (by IB 54), Demawso township, including Demawso relocation camp (by battalions 102 and 249), Ywathit relocation site, Shadaw township (by LIB 336), Mawchi township, and Pasaung township.

400. Karen Human Rights Group, 001-0186 to 0187, 001-0189, 001-0191 to 0197, 001-0310, 001-0318 to 0319, 001-0325, 001-0327, 001-0364 to 0365, 001-0367, 001-0376, 001-0388, 001-0449, 001-0481, 001-0485, 001-0552, 001-0593, 001-0607 to 0608, 001-0620, 001-0762 to 0764, 001-0905, 001-0921, 001-1342, 001-1855, 001-1868 to 1869, 015-2127, 017-2153, 027-2278 to 2279, 027-2294, 031-2393 to 2394, 031-2396, 031-2399, 031-2403 to 2404, 031-2409 to 2410, 154-4935, 154-5188, 154-5196, 154-5220, 154-5228, 154-5232, H21-6350 to 6354, H23-6388, H23-6391, H23-6396, M50-7354 to 7355, M50-7358 to 7360; Human Rights Watch/Asia, 001-0057, 150-4692, H07-5800; Amnesty International, 001-0767 to 0770, 001-0774, 087-3580, 088-3589 to 3591, 090-3653, 092-3719 to 3720; Images Asia, 125-4031, 125-4034, 125-4036, 125-4038; HRDU, M34-6952.

401. The following military units were mentioned specifically: IB 1, LIB 4, IB 5, LIB 8, 11 Division, LIB 12, LIB 13, IB 19, LIB 22, 22 Division, IB 23, Battalion 36, 44 Division, IB 51, IB 75, LIB 76, 77 Division, Battalion 77, IB 84, LIB 88, IB 97, 99 Division, Battalion 104, IB 106, LIB 113, LIB 116, LIB 119, LIB 207, Battalion 230, IB 231, Battalion 248, Battalion 249, IB 258, Battalion 301, IB 310, IB 317, LIB 339, LIB 340, LIB 355, Battalion 356, Battalion 357, LIB 420, LIB 434, Battalion 531, LIB 545, LIB 549, and the DKBA.

402. Karen Human Rights Group, 001-0189, 001-0319, 001-0376, 001-0449, 001-0619 to 0620, 031-2401, 031-2403 to 2405; Amnesty International, 088-3592; Images Asia, 125-4038; Human Rights Watch/Asia, 150-4692.

403. Karen Human Rights Group, 154-5188.

404. There is information that this happened in Letpadan township and in Ouk-twin town.

405. Karen Human Rights Group, 001-0179 to 0182, 001-0305 to 0308, 001-0338, 001-0340 to 0341, 001-0399, 001-0707 to 0708, 001-0924 to 0927, 073-3357 to 3359, M49-7311 to 7314; Images Asia, 001-0201 to 0226.

406. Amnesty International, 087-3579.

407. Human Rights Watch/Asia, 001-0054, 065-2973; Amnesty International, 001-0769; Images Asia, 001-0880. In 1994, a Muslim man was also captured by soldiers on the Yangon to Mottama (Martaban) train and forced to be a porter in the same offensive. See Human Rights Watch/Asia, 065-2972.

408. Karen Human Rights Group, 001-0299, 001-0759 to 0760, 001-0763, 001-1068, 001-1341, 001-1609 to 1612, 154-5220; Amnesty International, 001-0792, 088-3589, 090-3653, 094-3786, 099-3890; Mon Information Service, 001-1279, 001-1284, 139-4445; Human Rights Watch/Asia, 065-2972.

409. The information specifically referred to the following areas: Kyaikto township (by LIB 1 and LIB 207), Mawlamyine (Moulmein) town (by Battalion 104 and Regiment 80), Mottama (Martaban) town, Mudon township (by IB 62 and LIB 209), Thaton town, and Ye township (by IB 61 and LIB 406).

410. See paras. 374-388.

411. Karen Human Rights Group, 001-0304, 001-0312; Amnesty International, 093-3751.

412. HRDU, 001-0150; Karen Human Rights Group, 001-0176, 001-0412 to 0413, 001-1036, 001-1051, 001-1054 to 1057, 001-1072, 001-1368 to 1372, 029-2370; Amnesty International, 001-0500, 001-0791 to 0792; Images Asia, 001-1184; Mon Information Service, 001-1276 to 1277, 001-1386, 043-2651, 139-4443 to 4445, 139-4449 to 4450; Human Rights Watch/Asia, 150-4688 to 4689; affidavit of John Doe B, H20-6297.

413. The following areas and military units were specifically mentioned: Yebyu township, including for 33 Division, IB 104, LIB 273, Battalion 403, LIB 404, LIB 405, LIB 406, LIB 407, LIB 408, LIB 409, LIB 410 and LIB 431; Dawei (Tavoy) township, including for LIB 17, Battalion 25, 33 Division, 66 Division, IB 80 and Battalion 402; Thayetchaung township, including for 33 Division, LIB 403, LIB 404, Battalion 405 and IB 25; Launglon township, including for 33 Division; Palaw township, including for Battalion 280 and Battalion 101; and Bokpyin township.

414. HRDU, 001-0150, M34-6950, M34-6958 to 6959; Karen Human Rights Group, 001-0176, 001-0412 to 4113, 001-0434, 001-0448, 001-1032, 001-1036 to 1045, 001-1051, 001-1054 to 1057, 001-1072, 001-1129, 001-1368 to 1372, 029-2370, 154-5112, H24-6442, H24-6476, H24-6485; Amnesty International, 001-0500, 001-0791 to 0792; Images Asia, 001-1184; Mon Information Service, 001-1276 to 1277, 001-1386, 043-2651, 139-4442 to 4445, 139-4449 to 4450, M56-7421 to 7422; Human Rights Watch/Asia, 150-4688 to 4689, 150-4691, 154-5310; FTUB, 164-7766 to 7767; affidavit of John Doe B, H20-6297.

415. The information covered the townships of Thantlang, Tiddim, Falam, Matupi and Paletwa.

416. Karen Human Rights Group, 028-2341, 154-5134 to 5136, 154-5152 to 5156; Images Asia, 167-8308; Interview, M12-6812 to 6813.

417. Karen Human Rights Group, 154-5138. This work was done for LIB 266.

418. Amnesty International, 090-3653.

419. Karen Human Rights Group, 001-0563 to 0564.

420. Karen Human Rights Group, 001-0535, 001-0692; Amnesty International, 001-0770 to 0772.

421. Amnesty International, 089-3624a, 089-3624b, 089-3608 to 3616; Karen Human Rights Group, 001-0557 to 0558; Human Rights Watch/Asia, 001-0711, 001-0716, 107-3940 to 3941, 118-3995, 154-4923 to 4924, H07-5800; UNHCR, 033-2435 to 2436; Zunetta Liddell, 114-3986 to 3987.

422. Human Rights Watch/Asia, 001-0711; UNHCR, 033-2435. See also the discussion on this practice in paras. 374-388 below.

423. See statements of Witnesses 151, 168, 175 and 200. Witness 175 claimed that, during certain months of the year, neither she nor her husband had a single moment to attend to their own activities.

424. See statements of Witnesses 93 and 98.

425. See statement of Witness 8.

426. See statements of Witnesses 29, 31, 33, 39, 48, 59, 63 and 85.

427. See statements of Witnesses 18, 20, 48, 63, 66, 72, 121 and 171.

428. See statements of Witnesses 93, 98, 100, 101, 108, 109, 112, 113, 121, 132, 163, 174, 177, 187, 210 and 216.

429. The time-limit may be very short; some witnesses stated that the village head had to find the necessary porters on that very day: see statements of Witnesses 155 and 180.

430. See statements of Witnesses 113, 173 and 175.

431. See statement of Witness 166. Some village or section heads are said to have been tortured for not having carried out the orders properly. In this regard, see statements of witnesses 220-228.

432. See statements of Witnesses 113, 120, 153, 164 and 220-228.

433. See statements of Witnesses 93, 94, 98, 112, 125, 132, 135, 155, 169, 178, 179, 188, 201, 210 and 216. Direct arrests have even been carried out in Yangon: see statement of Witness 170.

434. See, in particular, statements of Witnesses 49 and 59.

435. For the eastern part, see statements of Witnesses 5, 102, 106-108, 112, 113 and 166. Even pregnant or elderly women may be requisitioned. See statements of Witnesses 174 and 176. For Chin State, testimonies cover the regions near Thantlang and Paletwa as well as Arakan hills (Arakan Yoma).

436. See statements of Witnesses 119, 125, 169, 176 and 200.

437. On two occasions, Witness 119 saw individuals shot dead for having refused to do the required portering.

438. Witness 109 stated that a refusal could result in a fine of 3,000 kyat.

439. See statements of Witnesses 93, 98, 100, 102, 105, 106, 108, 109, 112-114, 119, 131, 132, 135, 145, 160, 165, 169, 175, 176, 184, 187, 192, 193, 195, 204, 206, 210 and 245.

440. See statements of Witnesses 9, 10, 19, 44 and 52.

441. There have been no major hostilities in Mon State since the New Mon State Party (NMSP) signed a cease-fire with the Government of Myanmar in June 1995.

442. It is not unusual for porters to have to accompany the military on armed offensives: see statement of Witness 32 who accompanied soldiers on a military operation in 1991, and statement of Witness 43 who was a porter on the Thai border during an operation against the Karen National Union (KNU). Finally Witness 33 claimed to have accompanied the military in an operation against the Rohingya Solidarity Organization (RSO) in April 1997.

443. See statement of Witness 6, and statement of Witness 208 about a village where, from March 1997, three porters had to be permanently available for the military.

444. See statement of Witness 201.

445. See statement of Witness 93.

446. See statement of Witness 5 for the extensive military operation in Shan State.

447. See statement of Witness 118.

448. See statements of Witnesses 5, 93, 116, 124 and 151. The villagers may also be called up to detect mines in the vicinity of the villages or military camps: see statement of Witness 183.

449. See statements of Witnesses 93, 105, 132, 204 and 210. Witness 155 has explained that the entire village, including the children, is sometimes used as a shield.

450. Notably in Chin and Karen States. See, in particular, the statement of Witness 125.

451. The testimonies concern armed conflicts with the Karen, Mon and Shan forces. See, in particular, statements of Witnesses 108, 112, 184 and 245.

452. See statements of Witnesses 98, 105, 106, 112, 114, 117, 119, 121, 131 and 135. Consult the statement of Witness 132, whose assignment lasted for 94 days and was immediately followed by another assignment of 2 months.

453. See statements of Witnesses 19, 20, 26, 31, 44 and 48.

454. See statements of Witnesses 93, 113 and 168.

455. See statement of Witness 168.

456. See statements of Witnesses 26, 44, 48, 63, 80, 98, 100, 102, 105, 107, 113, 117, 119, 121, 132, 160, 162, 168 and 184. Witness 31 claimed to have received 15 kyat per portering assignment.

457. See statements of Witnesses 6, 7, 46, 48, 102, 106-108, 117-119, 121, 132, 153, 154, 160, 165 and 171.

458. See statement of Witness 193.

459. See statements of Witnesses 98, 117 and 168. Witness 241 claimed that his brother had died while portering as a result of complications caused by an infectious disease.

460. When questioned on this subject, all the witnesses said that they had had direct experience of such acts, perpetrated by the military for no apparent reason: see statements of Witnesses 6, 7, 19, 21, 26, 48, 63, 66, 80, 93, 98, 100, 102, 105-107, 112-114, 117, 118, 121, 124-126, 131, 132, 135, 137, 138, 146, 151, 155, 160, 168, 171-173, 176, 181, 194, 200, 204-207, 210 and 245. One deserter claimed to have personally beaten porters on the orders of his superior. Witness 44 mentioned a practice involving use of a red-hot iron.

461. See statement of Witness 236, who claimed to have seen about sixty porters shot dead by the military because they were exhausted, to week to continue, or simply wanted to rest for a moment. See also the statements of Witnesses 169, 200, 222 and 225. The situation of prisoners who have to do portering work is even more disgraceful in this respect: see statement of Witness 96.

462. See statements of Witnesses 108, 109, 118, 145, 168, 185 and 236.

463. The amounts mentioned vary from 300 to 10,000 kyat. See statements of Witnesses 96, 112 (3,000 kyat), 119 (5,000 kyat), 121 (400 to 500 kyat), 125 (5,000 kyat), 138 (3,000 kyat), 154 (2,000 kyat), 158 (450 kyat), 169 (200 kyat), 171 (500 kyat), 180 (1,300 kyat for one week), 184 (500 kyat), 187 (200 to 300 kyat), 209 (2,000 kyat for three days' portering), 229 (5,000 to 10,000 kyat) and 236.

464. Witness 236 had in fact been subjected to beatings during a portering assignment in 1985 at Three Pagodas Pass (Kayin State) and did not wish to repeat this traumatic experience.

465. See statements of Witnesses 100, 113, 159, 200 and 210.

466. Karen Human Rights Group, 032-2423; Lin, VII/42-43.

467. Karen Human Rights Group, 001-0027, 032-2423; Human Rights Watch/Asia, 065-2978; Min Lwin, VI/14; Ka Hsaw Wa, X/9.

468. Karen Human Rights Group, 001-1462, 016-2147, 032-2423.

469. The following camps were mentioned: a camp for LIB 360 in Mongping township in 1992; for Battalion 64 in Mongkaing township in 1994; for Battalion 518 in Kunhing township in 1996 and other new bases at Kunhing in 1997; a military camp in Namhsam township in 1997; and a military camp in Laikha town in 1997 and 1998.

470. For example, digging bunkers for a military camp at Wan Lao relocation site in Kunhing township.

471. Shan Human Rights Foundation, 001-0334, 001-0383, 143-4533, 145-4579, 147-4621, M34-6964; Karen Human Rights Group, 001-0665; Amnesty International, 168-8399 to 8400.

472. Amnesty International, 099-3895 to 3896; Karen Human Rights Group, 154-5083, 154-5089 to 5092, 154-5095.

473. The following camps were specifically mentioned: an army camp at Shadaw, a camp for Battalion 429 at Tee Po Klo in Demawso township, an army camp at Daw Tama Gyi in Demawso township, an army camp at the Mawchi relocation site in Mawchi township, an army camp at Mar Kraw She relocation site in Pruso township, and an army camp at Ywathit relocation site.

474. Karen Human Rights Group, 001-0586, 001-0592, 154-5083, 154-5090, 154-5095; Human Rights Watch/Asia, 065-2978.

475. Karen Human Rights Group, 001-0181, 001-0189 to 0197, 001-0302, 001-0307, 001-0310, 001-0318 to 0319, 001-0364, 001-0480, 001-0488, 001-0586, 001-0593, 001-0603, 001-0632, 001-0637, 001-0763 to 0764, 001-0904, 001-1922 to 1926, 001-1988 to 1990, 031-2393, 031-2395 to 2396, 154-5190, 154-5226, 154-5254 to 5260, 154-5268, H23-6394, M50-7360; Human Rights Watch/Asia, 065-2978; Amnesty International, 093-3748, 099-3896; Images Asia, 001-0209, 001-0220, 125-4024, 125-4036, 125-4038; Min Lwin, H06-5777 to 5782, H06-5785 to 5790.

476. The following military installations were specifically mentioned. In Kayin State: a camp for 99 Division in Hpa-an township in 1993; a camp for LIB 9 near the Thai border in 1994; an LIB 12 camp in Hpa-an district in 1997; a camp at Kadaingti in Papun district in 1995 and 1996; a camp for LIB 547 in Nabu village in Kawkareik township in 1995 and again in 1997; a camp for Battalion 104 at Maw Kee in Dooplaya district in 1995; Paw Yin Pyu army camp in Hlaingbwe township in 1995; a camp near Painkyone used by Battalion 339, Battalion 338 and 99 Division; a camp for LIB 310 in Kawkareik township in 1996; IB 231's Ta Mine Gone camp in Kawkareik township in 1996; a camp for IB 62 in Kawkareik township in 1996; a camp for LIB 549 in Kawkareik township in 1997; camps for Battalion 36 in the Painkyone area of Hlaingbwe township from 1993 to 1997; a camp for LIB 340 near Dee Taw Kee in Papun district in 1995 and 1996; a camp at Tee Per near Painkyone in Hlaingbwe township in 1996; a camp for a company of Battalion 310 in Kya-in village in Kawkareik township in 1995; bunkers for Tatmadaw and DKBA units in Kyat Kwa village in Kawkareik township; a camp of the 202 Tactical Operational Command in the Kyeikdon area of Kya In Seik Gyi township in 1997; bunkers for troops in Paglawni village near Kyeikdon in Kya In Seik Gyi township; outposts at Azin (Saw Hta) and MaeTha Raw Hta in Dooplaya district in 1996 and 1997; an army camp near Kyunchaung village in southern Dooplaya district in 1997; an army camp in Kyone Yaw village in southern Dooplaya district in 1997; a DKBA camp at Myaing Gyi Ngu (Khaw Taw) in 1995 and 1996; a DKBA camp in the Painkyone area of Hlaingbwe township in 1997; and several other army camps between Papun and Kyauknyat over the period 1992 to 1995. In Bago Division: in Busakee township, for IB 57 in Shwegyin township, for IB 26 in Tantabin township and for IB 60 in Kyaukkyi township. Villagers were also forced to do construction and other work for an army camp at Ye Tho Gyi in Toungoo district for IB 48 and LIB 354, and to dig an eight-mile ditch at Yan Myo Aung army compound in Kyaukkyi township in 1994.

477. Villagers in Papun district in 1996 were also forced to build houses for the families of soldiers who had died. See Karen Human Rights Group, 001-0480.

478. Specific mention was made of the following camps: a camp for Battalion 108 in Ye township in 1994, a camp for IB 93 in Bilin township in 1995, a camp near Yah Pu village in Ye township in 1996, and a camp for IB 31 in Thanbyuzayat township in 1997.

479. Karen Human Rights Group, 001-0176, 001-0394, 001-1341.

480. The following military installations were specifically mentioned: military barracks and stores on Heinzebok Island since 1994; for LIB 267 in Yebyu township in 1994 and 1995; for LIBs 406, 407 and 408 in Yebyu township; a military training ground and other construction work for LIBs 403, 404 and 405 in Thayetchaung township in 1995; for Battalion 103 in Palaw township in 1995; for Battalion 101 and Battalion 280 in Palaw township in 1997; for Battalion 280 in Palaw township in 1997; houses for soldiers from Battalion 404 and military buildings near Ohnbinkwin and Kadaik in Yebyu township in 1995; for Battalions 408, 409 and 410 in Yebyu township; for LIBs 273 and 405 in Yebyu township; work camps on the Eindayaza to Natkyizin section of the Ye-Dawei (Tavoy) railway in Yebyu township in 1996; two buildings for LIB 407 in Yebyu township in 1997; for LIBs 17 and 25 in Dawei (Tavoy) township in 1996; and for three army camps near Yebone village in Yebyu township since 1988.

481. Including Yebyu, Dawei (Tavoy), Thayetchaung and Palaw townships.

482. HRDU, 001-0149; Amnesty International, 001-0793; Karen Human Rights Group, 001-1034, 001-1055, 001-1117 to 1118, 001-1128, 001-1348, 001-1368 to 1369, 001-1373, 018-2167, 018-2169, H24-6423, H24-6469, H24-6478, H24-6480, H24-6484; Mon Information Service, 001-1280, 001-1386, 001-1388, 042-2621, 043-2651, M56-7428; Human Rights Watch/Asia, 065-2969, 150-4690; FTUB, 164-7766 to 7767; H20-6294, H20-6296.

483. IB 263 and IB 264 were specifically mentioned.

484. Karen Human Rights Group, 001-0445, 001-0557 to 0559, 001-0565 to 0566; Human Rights Watch/Asia, 001-0711, 118-3995; Amnesty International, 064-2962.

485. See para. 397 below.

486. Amnesty International, 089-3605; Human Rights Watch/Asia, 154-4926; Human Rights Watch/ Refugees International, 154-5404.

487. Villagers from Matupi township were ordered to construct a police station in Lailenpi; villagers from Thantlang township were ordered to construct six sentry posts for LIB 266 in Thantlang.

488. Karen Human Rights Group, 028-2343, 154-5138 to 5140; Images Asia, 167-8308.

489. The land was confiscated by LIB 384 from villagers in Momauk township. See Mirante, I/51.

490. The road was being constructed from Talakwa, near Pathein, to Nga Saw beach (30 km north of Chaungtha); there is information that forced labour was also used for the construction of this road (see para. 422 below). See Karen Human Rights Group, 001-0652, 001-0692.

491. Artillery Battalion 20.

492. Karen Human Rights Group, 001-0563, 154-5148; Images Asia, 167-8337.

493. The witnesses questioned by the Commission come from different ethnic groups: Burman (3); Chin (4); Karen (36), Karenni (17); Mon (8); Muslim other than Rohingya (6); Rakhine (8); Rohingya (44); Shan (17); and Tavoyan (1). The testimonies cover, in particular, in Chin State, Thantlang and Paletwa townships; in Mon State, Bilin and Thanbyuzayat townships; in Kayah State, Demawso, Loikaw, Mawchi, Shadaw and Ywathit townships; in Kayin State, the following townships: Hlaingbwe (particularly in the Painkyone and Bee T'Ka areas), Kawkareik (particularly the area around Nabu village-tract), Kya In Seik Gyi, Hpa-an and Papun; in Shan State, the following townships: Laikha, Langkho (particularly the area around Wan Hat village tract), Lashio, Mongpan, Namhsam, Namtu, Taunggyi; and in Yebyu township in Tanintharyi Division.

494. The reference to military camps is thus not limited to those of the Tatmadaw, but embraces all work carried out for the camps of these different public forces.

495. See statements of Witnesses 29, 30, 31, 38, 46-48, 58, 62, 71, 81, 89, 98, 113, 138, 139, 155, 166, 162, 163, 173, 175, 176, 181-186, 202, 208 and 220.

496. See statements of Witnesses 113 and 155.

497. See statements of Witnesses 89, 160, 175 and 185. Witness 32 stated, for his part, that the military always commandeered him directly because his home was near their camp.

498. See statements of Witnesses 29, 58, 61, 91, 89, 98, 141, 157, 163, 168, 174, 175, 181 and 202. Witness 155 claimed that the military might require more than one person per family if the need arose.

499. See statements of Witnesses 13, 58, 89, 107, 100, 113, 144, 155, 165, 181, 185, 196, 204, 220-225 and 227.

500. See statements of Witnesses 144, 182, 183 and 185.

501. See statements of Witnesses 78, 155 and 165.

502. Several witnesses provided details on this subject: see statements of Witnesses 7, 9, 50, 51, 61, 71, 76-78, 82, 91, 132, 151, 160, 168, 170, 171, 174, 185, 190-193, 196, 198-202 and 205.

503. See statements of Witnesses 142, 143 and 180.

504. See statements of Witnesses 138, 139, 171 and 181.

505. See statements of Witnesses 168, 175, 180 and 195.

506. See statements of Witnesses 7, 62, 98, 100, 113, 116, 141, 142, 144, 166, 168, 174-176, 180, 181, 190, 195 and 196.

507. See statements of Witnesses 137, 204 and 208.

508. See statements of Witnesses 66, 92, 100, 107, 108, 114, 117, 118, 137, 144, 155, 157, 166, 168, 171, 175, 187, 190, 194 and 180.

509. See statements of Witnesses 7, 44, 56, 66, 99, 126, 142, 143, 155 and 181-183.

510. See statements of Witnesses 20, 51, 56, 92, 125, 126, and 145-148.

511. See statements of Witnesses 81, 124, 155, 165 and 185.

512. See statements of Witnesses 180 and 176. The latter stated that, in this context, he had to keep the military informed of the movements of other troops.

513. See statements of Witnesses 144 and 175.

514. See statements of Witnesses 48, 58, 81, 91, 116, 117, 119, 138, 139, 168, 173, 175 and 181. Witness 32 was the only person encountered who claimed to have received a little rice or yellow-pea curry from time to time.

515. See statement of Witness 162.

516. See statements of Witnesses 16, 48, 58, 81, 100, 102, 108, 116, 117, 162, 173, 175, 181 and 190. Witness 38 claimed to have received 10 kyat on a few occasions.

517. See statements of Witnesses 113, 160, 162, 171, 173, 174, 190, 198 and 201.

518. Several witnesses claimed to have been beaten: 13, 29, 37, 32, 48, 73, 85, 107, 108, 126, 127, 157, 165, 175, 181 and 201.

519. See statements of Witnesses 113, 126, 145-148, 181, 208, 220-225 and 227.

520. See statements of Witnesses 32, 56, 185, 200 and 201.

521. The amounts varied considerably: see statements of Witnesses 30 (1,000 kyat); 91 (25 kyat); 168 (100 kyat per day and one chicken); 181; 185 (1,000 kyat per month); 196 (200 kyat and one chicken); 212 (500 kyat) and 220 (500 kyat per project).

522. The cost of hiring substitutes can also vary: see statements of Witnesses 38 ( 200 kyat); 60 (200 kyat twice or three times per month); 81; 89 (100 kyat in 1991); 145 (300 kyat); 173 (100 kyat); and 174.

523. See statement of Witness 201.

524. Karen Human Rights Group, 001-1462.

525. Amnesty International, 088-3588; Karen Human Rights Group, 001-1462.

526. Karen Human Rights Group, 001-0027, 032-2423; Mon Information Service, M56-7419; Lin, VII/39.

527. See, for example, Karen Human Rights Group, 001-0549 to 0550, 001-0618.

528. Karen Human Rights Group, 032-2423; Heppner, XII/58-59.

529. See paras. 230-333 above.

530. The areas mentioned were Papun district and Dooplaya district. See Karen Human Rights Group, 001-0189, 001-0319, 001-0449, 154-5196; Images Asia, 125-4038.

531. The areas mentioned were located in Toungoo district. See Images Asia, 001-0216; Karen Human Rights Group, 001-0399.

532. The incidents referred to occurred in Thaton district. Karen Human Rights Group, 001-0312.

533. Karen Human Rights Group, 001-0304, 001-0312, 001-0318, 001-0449, 031-2409; Amnesty International, 093-3751; Images Asia, 125-4038.

534. S.H.A.N/Shan Human Rights Foundation, 001-0170.

535. Use of the population in Mawchi relocation camp was mentioned. See Karen Human Rights Group, 154-5095.

536. The areas mentioned were Papun and Dooplaya districts and Hpa-an, Kawkareik and Hlaingbwe townships. See Karen Human Rights Group, 001-0189, 001-0376, 001-0586, 001-0619, 031-2401, 031-2403; Images Asia, 125-4038.

537. Karen Human Rights Group, 031-2405, referring to events in Bilin township.

538. The specific area mentioned was Yebyu township. See Karen Human Rights Group, 018-2167.

539. Villagers in Kalaymyo township were forced to guard a newly-constructed section of the Gangaw to Kalaymyo railway, particularly during visits of important officials. See Karen Human Rights Group, 001-0563.

540. The area mentioned was Thantlang township. Karen Human Rights Group, 154-5138.

541. Hpa-an township. Karen Human Rights Group, 001-0376.

542. Toungoo district. Karen Human Rights Group, 001-0182, 001-0453, 073-3357.

543. Tamu township. Karen Human Rights Group, 001-0376.

544. The witnesses in question came from the following groups: Burman (3); Chin (1); Karenni (1); Karen (18); Mon (3); Muslim other than Rohingya (1); Rakhine (1); Rohingya (9); and Shan (2).

545. See statements of Witnesses 5, 19, 159, 161, 166, 169, 174, 177 and 236.

546. See statements of Witnesses 136, 220-225, 227 and 229.

547. See statements of Witnesses 182-185 and 198.

548. See statement of Witness 200.

549. See statements of Witnesses 19, 46 and 80.

550. See statements of Witnesses 163, 166, 169 and 173.

551. See statements of Witnesses 161, 163, 168 and 185.

552. See statements of Witnesses 160, 169 and 174.

553. Groups may vary from two to ten persons: see statements of Witnesses 159, 161, 172 and 177.

554. See statements of Witnesses 160, 161, 166, 169, 171 and 174-176.

555. See statement of Witness 25 who was beaten because he fell asleep during a roadside watch.

556. Witness 168 said that nine villages comprising 940 households had to pay 500 kyat per household for damage caused to military vehicles.

557. See statements of Witnesses 153, 160, 161, 163, 168, 169, 174 and 177.

558. See, in particular, the statement of Witness 216.

559. See statements of Witnesses 153 (one worker and two soldiers injured); 168 (worker had his leg blown off); and 174 (whose aunt was killed in a mine blast).

560. See statements of Witnesses 161, 171 and 175.

561. See statements of Witnesses 161 and 175.

562. See, in particular, the statement of Witness 236.

563. Witness 169 claimed to have paid the military 70 kyat per day so as to be exempted from guard duties.

564. The costs of substitutes vary: see statements of Witnesses 169 (30-50 kyat per day); 172 (30 kyat per day) and 185 (100 kyat).

565. See statements of Witnesses 15, 99 and 185. Witness 237 stated that the military had commandeered his boat several times per month without paying him. Deprived of income from paying passengers, he was quite simply no longer able to pay the rent and maintenance costs demanded by the owner.

566. There does, however, appear to be provision made for compulsory military service in Myanmar legislation (see paras. 255 to 257 above).

567. Karen Human Rights Group, 001-1463 to 1464; M56-7418 to 7419; Liddell, V/14-16; Lin, VII/23, 34-36.

568. Karen Human Right Group, 001-1463, Human Rights Watch/Asia, H07-5807 to 5808; Images Asia, 127-4174 to 4176; Liddell, V/14-16.

569. Karen Human Rights Group, 001-0190, 001-0603, 001-1463; Human Rights Watch/Asia, H07-5808.

570. Mon Information Service, M56-7418.

571. FTUB, 164-8080.

572. Karen Human Rights Group, 001-0310; Images Asia, 127-4174 to 4176, M36-7019; Human Rights Watch/Asia, H07-5807; Liddell, V/15-16; Lin, VII/35.

573. See orders 9 and 10 in Appendix XI.

574. See order 10 in Appendix XI.

575. Mon Information Service, M56-7418 to 7419.

576. Karen Human Rights Group, 001-0908, 031-2416 to 2417.

577. See statements of Witnesses 5, 75, 93-95, 170, 215 and 216.

578. See statement of Witness 93.

579. ibid.

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

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.⁽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.⁽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⁽⁵⁸²⁾ had used forced labour on projects they controlled for their own benefit or that of their officers.⁽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,⁽⁵⁸⁴⁾ Kayah,⁽⁵⁸⁵⁾ Kayin,⁽⁵⁸⁶⁾ Mon,⁽⁵⁸⁷⁾ Rakhine⁽⁵⁸⁸⁾ and Shan⁽⁵⁸⁹⁾ States and Bago,⁽⁵⁹⁰⁾ Sagaing⁽⁵⁹¹⁾ and Tanintharyi⁽⁵⁹²⁾ Divisions. In Rakhine State, Muslims were also forced by the military to do cultivation work for Burmese and Rakhine villagers.⁽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,⁽⁵⁹⁴⁾ Mon,⁽⁵⁹⁵⁾ and Shan⁽⁵⁹⁶⁾ States and Sagaing⁽⁵⁹⁷⁾ and Tanintharyi⁽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⁽⁵⁹⁹⁾ and Sagaing Division.⁽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,⁽⁶⁰¹⁾ Rakhine State⁽⁶⁰²⁾ and Tanintharyi Division.⁽⁶⁰³⁾ The information covers a period from at least 1994 to 1996.

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,⁽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.⁽⁶⁰⁵⁾ Other witnesses were obliged to farm fish⁽⁶⁰⁶⁾ or prawns⁽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.⁽⁶⁰⁸⁾ Witnesses claimed to have had to leave Myanmar because they no longer had enough land to make a living.⁽⁶⁰⁹⁾ In other cases, the military oblige the workers to cultivate land located within the military camp,⁽⁶¹⁰⁾ or to clear the forest or jungle near the camp so as to make this land suitable for cultivation.⁽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.⁽⁶¹²⁾

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

406. One person per family is usually requisitioned to perform the agricultural work,⁽⁶²⁰⁾ the order specifying the tasks to be done being transmitted through the intermediary of the village head.⁽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.⁽⁶²²⁾

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

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

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⁽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"⁽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,⁽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.⁽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 not 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.⁽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.⁽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⁽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.⁽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).⁽⁶³²⁾ In general it appeared to be common for workers to have to walk for several hours to reach a work site.⁽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⁽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.⁽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.⁽⁶³⁶⁾ If they were injured they were in most cases neither treated nor given any compensation.⁽⁶³⁷⁾ Deaths from sickness and work accidents appeared to be frequent on some projects.⁽⁶³⁸⁾

415. People forced to work on these projects were not paid, other than in exceptional circumstances.⁽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;⁽⁶⁴⁰⁾ payment did not appear to have continued, as there were several reports of unpaid forced labour on the project in 1997.⁽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.⁽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.⁽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.⁽⁶⁴⁴⁾ Such people were also particularly vulnerable to abuse at the hands of the soldiers.⁽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.⁽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,⁽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.⁽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.⁽⁶⁴⁹⁾ Cases of soldiers raping female workers were not uncommon.⁽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.⁽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;⁽⁶⁵²⁾ the Mandalay ring road in 1994 and 1995;⁽⁶⁵³⁾ parts of the Yangon to Mandalay highway (through Toungoo) from 1994 to at least 1996;⁽⁶⁵⁴⁾ a road from Haka in Chin State to Gangaw in Magway Division in 1996 and 1997⁽⁶⁵⁵⁾ and from Gangaw to Kalaymyo in Sagaing Division in 1995;⁽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;⁽⁶⁵⁷⁾ the Labutta to Yangon road (through Myaungmya, Pantanaw and Nyaungdone) linking Yangon and Ayeyarwady Divisions, over the past few years;⁽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.⁽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,⁽⁶⁶⁰⁾ between 1993 and 1998, as well as on the upgrading of some existing roads in the area.⁽⁶⁶¹⁾ Forced labour was also used on a regular basis for crushing stone in Kyaukkyi township for road construction.⁽⁶⁶²⁾ The road network in Chin State⁽⁶⁶³⁾ was also improved and extended over the last few years using forced labour,⁽⁶⁶⁴⁾ and in Shan State the network of roads in certain areas in the south of the State⁽⁶⁶⁵⁾ has been improved with forced labour since at least 1992, but particularly since 1996.⁽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,⁽⁶⁶⁷⁾ and in the area around Kanbauk in Yebyu township in 1995.⁽⁶⁶⁸⁾

422. There was also information regarding road construction and improvement in Kayah State, particularly roads to relocation sites;⁽⁶⁶⁹⁾ Mon State;⁽⁶⁷⁰⁾ Sagaing Division;⁽⁶⁷¹⁾ Rakhine State;⁽⁶⁷²⁾ and Ayeyarwady Division.⁽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⁽⁶⁷⁴⁾ were forced to work on the construction of a railway from Ye in Mon State to Dawei (Tavoy) in Tanintharyi Division.⁽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.⁽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.⁽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.⁽⁶⁷⁸⁾ Many of those forced to work on the latter section were from Chin State. The information covered a period from 1993 to 1995.⁽⁶⁷⁹⁾

(7) Other infrastructure work

427. Roads and related infrastructure. Almost 100 witnesses, from different ethnic groups,⁽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,⁽⁶⁸¹⁾ and mainly recount events occurring over recent years, if not months.⁽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.⁽⁶⁸³⁾

428. As regards work organization and working conditions, testimonies from persons who had been obliged to work corroborate those of village heads,⁽⁶⁸⁴⁾ heads of village sections⁽⁶⁸⁵⁾ and a deserter from the Tatmadaw who had been involved with organizing such labour.⁽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;⁽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.⁽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.⁽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.⁽⁶⁹⁰⁾ One person per family is generally called up, though the authorities may demand others as needed.⁽⁶⁹¹⁾ The witnesses stated that men, women and children between the ages of 12 and 72 performed compulsory labour on roadworks.⁽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.⁽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.⁽⁶⁹⁴⁾

431. Road construction work generally consists of levelling the ground, cutting trees, breaking stones, transporting earth for embankments and spreading tar.⁽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.⁽⁶⁹⁶⁾

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

433. Apart from rare and exceptional occasions, the persons recruited were neither paid nor fed.⁽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.⁽⁷⁰³⁾ Tools are generally not provided⁽⁷⁰⁴⁾ and, if the workers have to live on the site, they must build their own makeshift shelters in which to sleep at night.⁽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.⁽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.⁽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.⁽⁷⁰⁸⁾ In fact, the work is not really organized systematically;⁽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.⁽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⁽⁷¹¹⁾ supplied the Commission with relevant information on railways already constructed, or under construction, in Kachin,⁽⁷¹²⁾ Kayah,⁽⁷¹³⁾ Mon⁽⁷¹⁴⁾ and Shan States and in Bago,⁽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.⁽⁷¹⁶⁾ One person per family is generally called up.⁽⁷¹⁷⁾ Each family, group or village is assigned a section of the railroad.⁽⁷¹⁸⁾ Men, women and children claimed to have worked on these railway construction sites or to have seen such persons forced to do so;⁽⁷¹⁹⁾ it is common to meet children sent by their families to perform the work required.⁽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,⁽⁷²¹⁾ and that the most tedious work is reserved for the prisoners.⁽⁷²²⁾

439. Work on railway construction consists, initially, of preparing and levelling the ground.⁽⁷²³⁾ Subsequently, the workers have to crush the necessary stone,⁽⁷²⁴⁾ lay the chippings, cut wood to make sleepers⁽⁷²⁵⁾ and then lay the sleepers and rails.⁽⁷²⁶⁾ This is followed by maintenance work involving removal of weeds and scrub.⁽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.⁽⁷²⁸⁾

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

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

442. It is possible to be exempted from the work by paying a certain amount of money to the authorities⁽⁷³⁵⁾ or by finding a replacement.⁽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.⁽⁷³⁷⁾

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.⁽⁷³⁸⁾

445. The general nature and organization of such work was the same as that described for road and rail infrastructure.⁽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⁽⁷⁴⁰⁾ and Rakhine State,⁽⁷⁴¹⁾ dams and irrigation projects in Sagaing Division,⁽⁷⁴²⁾ a major dam project in Shan State,⁽⁷⁴³⁾ a dam in Tanintharyi Division⁽⁷⁴⁴⁾ and a canal in Yangon Division.⁽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.⁽⁷⁴⁶⁾ There was also evidence in the form of a secondary statement relating to a helipad being constructed in the same region in 1996.⁽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.⁽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,⁽⁷⁴⁹⁾ Shan State,⁽⁷⁵⁰⁾ Tanintharyi Division,⁽⁷⁵¹⁾ the construction of a monastery in Sagaing Division,⁽⁷⁵²⁾ as well as for work at Bayintnaung Palace at Toungoo in Bago Division,⁽⁷⁵³⁾ Mandalay Palace⁽⁷⁵⁴⁾ and on the construction of a Buddha Museum at Sittway in Rakhine State.⁽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.⁽⁷⁵⁶⁾

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