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⁾ 

(c) Communications from non -governmental organizations

38. In a communication dated 13 August 1997, Amnesty International submitted information to the Commission on matters relevant to the complaint, including 15 documents published by Amnesty International between 1988 and 1997.⁽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.

(c) Communications from a company named in the complaint

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

(c) Thailand

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

93. In Mae Hong Song, the Commission met 53 people from various States in Myanmar and belonging to the Karenni, Karen, Burman, Shan and Pa-o ethnic groups.⁽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.