Part V

Conclusions and recommendations

14. Conclusions and recommendations

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

(1) Preliminary questions

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

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

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

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

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

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

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

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

(2) Terms of reference of the Commission

524. By a letter dated 20 June 1996, 25 Workers' delegates presented a complaint under article 26 of the Constitution against the Government of Myanmar for non-observance of the Forced Labour Convention, 1930 (No. 29), which it ratified on 4 March 1955 and which came into force one year later.

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

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

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

(3)  Conclusions on the substance of the case

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

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

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

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

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

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

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

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

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

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

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

(4)  Recommendations

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

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

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

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

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

(5)  Concluding observations

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

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

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

Geneva, 2 July 1998.
 

(Signed) W. Douglas, Chairperson.

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

* * *

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

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

962. See above, para. 70.

963. For a detailed description of the measures taken at the First Session, see above paras. 17-27.

964. For more details on the work of the Second Session, see above, paras. 55-67.

965. See above, para. 58.

966. Report of the Commission instituted under article 26 of the Constitution of the International Labour Organization to examine the complaint on the observance by Poland of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), presented by delegates at the 68th Session of the International Labour Conference (1994), Official Bulletin, Vol. LXVII, Series 466, p. 122.

967. See the relevant articles reproduced above in para. 3.

968. See above, paras. 121-168.

969. See above, para. 8.

970. See above, paras. 12-16.

971. See paras. 300 to 350 above.

972. See paras. 351 to 373 above.

973. See paras. 374 to 388 above.

974. See paras. 394 to 407 above.

975. See paras. 394, 396 and 504 above.

976. See paras. 408 to 443 above.

977. See paras. 444 to 457 above.

978. See paras. 458 to 461 above.

979. See paras. 485 to 488 and 492 to 502 above.

980. See paras. 237 et seq. and 470 et seq. above.

981. See paras. 286 to 288 above.

982. See paras. 480 and 481 above.

983. See paras. 291 and 322 above.

984. See paras. 302, 307, 308, 328, 329, 330, 333, 341, 343, 349, 367, 455 and 481.

985. See paras. 239 and 240 above.

986. See paras. 302, 305, 307, 312, 373, 387, 414, 434 and 442 above.

987. See paras. 289, 340 and 429 above.

988. See paras. 343, 367, 414 and 433 above.

989. See paras. 292, 343, 367, 418, 433, 435 and 441 above.

990. See paras. 292, 311, 317, 349, 376, 413 and 418 above.

991. See paras. 292, 418 and 435 above.

992. See paras. 292, 418, 441 and its footnote (734) above.

993. See paras. 311, 317, 343 (footnote 437), 349 and 418 above.

994. See paras. 291, 302, 308, 314, 317, 323, 334, 342, 343, 353, 368, 375, 384, 416, 430, 437, 456 and 511 above.

995. See paras. 291, 302, 314, 323, 343, 368, 375, 384, 416, 430, 437, 456 and 511 above.

996. See paras. 291, 302, 323, 416, 430 and 511 above.

997. See paras. 302 and 323 above.

998. See paras. 312, 338, 348, 387, 395, 406, 415, 433, 440, 457 and 512 above.

999. See paras. 319, 414 and 512 above.

1000. See paras. 245 et seq. and 473 et seq. above.

1001. See, inter alia, paras. 295 and 443 above.

1002. See paras. 370, 372 and 404 above.

1003. See paras. 352 and 370 above.

1004. See paras. 296, 297 and 434 above.

1005. See paras. 295, 302, 307, 312, 373, 387, 434 and 443 above.

1006. See paras. 297, 339 and a number of oral testimonies.

1007. See para. 296 above.

1008. See paras. 355 et seq., 362 and 366 above.

1009. See paras. 296, 339 and 362. See also paras. 249 and 254, concerning restrictions on the freedom of movement and their bearing on the exposure to forced labour.

1010. See paras. 300, 328, 330, 332 and 346 above.

1011. See para. 318 above.

1012. See para. 314 above.

1013. See para. 319 above.

1014. See para. 348 above.

1015. ibid.

1016. See paras. 414 and 432 above.

1017. See paras. 317, 349, 372, 376, 385, 418, 432, 435, 441 and 457 above.

1018. See paras. 317, 346, 347, 349, 374, 418 and 432 above.

1019. See paras. 317, 343, 353, 372, 418 and 432 above.

1020. See paras. 338, 341, 370, 380, 387, 406, 414 and 433 above.

1021. See paras. 370 and 372 above.

1022. See paras. 316 and 348 above.

1023. See para. 316 above.

1024. See para. 315 above.

1025. See para. 320 above.

1026. See paras. 417, 433 and 440 above.

1027. See para. 514 above.

1028. See para. 258 above.

1029. See para. 284 above.

1030. See paras. 481 and 514 above.

1031. See para. 203 above.

1032. See paras. 204 and 478 above.

1033. See para. 122 et seq. above.

1034. See para. 119 above.

1035. See paras. 481 and 529 above.

1036. See para. 258 above.

1037. See para. 152 above.

1038. See paras. 477 and 489 to 491 above.

1039. UN doc. UNGA A/RES/52/137 of 12 Dec. 1997, para. 8.

1040. UN doc. CESE/CN.4/1998/70 of 15 Jan. 1998, para. 78.