ILO REPORT ON FL IN BURMA: SLICE 17

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[ILO COMMISSION OF INQUIRY ON FORCED LABOUR IN BURMA, SLICE
17]
 
 
                 13. FINDNGS AS TO COMPLIANCE 
                        WITH THE CONVENTION
 
468. Obligations under the Convention. As indicated above for
States having ratified the Convention,(798) under Article 1(1)
of the Convention, the Government of Myanmar must neither
exact forced or compulsory labour nor tolerate its exaction,
and it must ensure the repeal of 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.
 
469. In this chapter, the Commission will set out its findings
as to whether the Government of Myanmar has complied with its
obligations under the Convention as regards national laws,
statutory and administrative instruments as well as actual
practice. In doing so, the Commission will also refer to the
exceptions provided in Article 2(2) of the Convention(799) and
the present status of Article 1, paragraph 2, and Article 4 et
seq. of the Convention.(800) Furthermore, in setting out its
findings as to the compliance of national law and practice
with the obligations under the Convention, the Commission will
address the issue of enforcement of the prohibition of forced
labour under Article 25 of the Convention.(801) 
 
 
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
 
 
470. The Commission notes that section 11(d), read together
with section 8(1)(g), (n) and (o) of the Village Act,(802) as
well as section 9(b) of the Towns Act(803) provide for the
exaction of work or services from any person residing in a
village tract or in a town ward, that is, work or services for
which the said person has not offered himself or herself
voluntarily, and that failure to comply with a requisition
made under section 11(d) of the Village Act or section 9(b) of
the Towns Act is punishable with penal sanctions under section
12 of the Village Act or section 9A of the Towns Act.(804)
Thus, these Acts provide for the exaction of "forced or
compulsory labour" within the definition of Article 2(1) of
the Convention.(805)
 
(b) Non-applicability of exceptions defined in Article 2(2) of
 the Convention
 
471. The Commission notes that the provisions of the Village
Act and the Towns Act under which residents may be required
to perform forced or compulsory labour on a general or
individual requisition of the headman are "widely worded", as
was also noted in Executive Orders made under the Village
Act;(806) indeed, residents are to assist the headman in the
execution of his public duties,(807) which in turn include the
duty to supply guides, messengers, porters, etc., to any
troops or police posted near or marching through a village
tract and generally to assist all officers of the Government
in the execution of their public duties. Thus, the labour and
services that may be exacted under the Village Act and the
Towns Act are as indefinite as the needs of the Government;
they are limited neither to emergencies nor to minor communal
services as defined in Article 2, paragraph 2(d) and (e), of
the Convention,(808) and more generally do not come under any
of the exceptions listed in Article 2, paragraph 2.
 
 
(c) Expiration of the transitional period
 
472. In its observations on the complaint, the Government has
not invoked Article 1(2) of the Convention which allowed for
recourse to forced or compulsory labour during a transitional
period, for public purposes only, and as an exceptional
measure, subject to the conditions and guarantees provided in
the Convention; neither has it done so on earlier
occasions.(809) For the reasons mentioned above,(810) the
Commission considers that 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. Moreover, in the present case, the
undertaking under Article 1(1) of the Convention to suppress
the use of forced or compulsory labour in all its forms within
the shortest possible period precludes the Government from
having recourse to legislation that it had over many years
declared obsolete and not applied.(811) The Commission
nonetheless notes that the wide powers to requisition labour
and services laid down in the Village Act and Towns Act are
incompatible not only with the obligation to suppress the use
of forced or compulsory labour under Article 1, paragraph 1,
read together with Article 2 of the Convention, but also with
the conditions and guarantees laid down in Articles 9 to 14
and 17 to 19 of the Convention to restrict and regulate
recourse to compulsory labour pending its suppression.(812)
 
 
(d) Role of secret directives and payment of wages
 
473. Section 8(1)(g) of the Village Act provides for payments
to headmen for the collection and supply of guides,
messengers, porters, etc., but nowhere in the Village Act or
Towns Act is provision made for any payment to residents
called up for labour or services. The (secret) Order dated 2
June 1995 on "Prohibiting unpaid labour contributions in
national development projects" stresses that "in obtaining the
necessary labour from the local people, they must be paid
their due share".(813) While Article 14 of the Convention
provided for the remuneration of forced or compulsory labour
exacted during the transitional period, the mere payment of
wages for labour obtained through the call-up of local
residents does not remove such labour from the scope of the
definition of forced or compulsory labour in Article 2(1) of
the Convention. Payment does not change the character of
labour exacted compulsorily or by force; it merely becomes
paid compulsory or forced labour. This follows not only from
the definition in Article 2(1) itself (which does not address
the issue of remuneration) but also from the very logic of
Article 14, which deals with the remuneration of labour
defined as forced or compulsory. Also, the "national
development projects" to which the secret order refers do not
come under any of the exceptions in Article 2(2) of the
Convention, so that recourse to compulsory labour for such
projects, even if fully remunerated, must be suppressed under
Article 1(1) of the Convention. In summary, the (secret) Order
dated 2 June 1995 did not exonerate the Government from its
obligations under the Convention.
 
474. As set out above,(814) the (equally secret) directive
(No. 82) dated 27 April 1995 "To stop obtaining labour without
compensation from the local people in irrigation projects" in
Yangon Division appears to go further towards suppressing
recourse to forced labour than the secret order referred to in
the previous paragraph, in that it mentions, in the unofficial
English translation, the "hire" of paid labourers. However,
the directive remains equivocal where it refers to stopping
"the practice of obtaining labour from the local people
without monetary compensation", which might allow for a
continuation of the practice of "obtaining" labour from the
local people, albeit with compensation. In any event, both
texts are marked secret and thus appear not to be available to
those who are supposed to benefit from them.
 
475. More importantly, evidence before the Commission on
actual practice,(815) which is set out in Chapter 12 and which
will be considered in section B of the present chapter,(816)
shows the continued call-up of local people for labour and
services (without any compensation).
 
 
(2) Legislation on citizenship 
    and other instruments bearing
    on the freedom of movement
 
476. The Commission notes that the sequence of legislative and
administrative instruments progressively denying citizen
status to the Rohingyas,(817) read together with the
restrictions on the freedom of movement of foreigners,(818) as
well as more general requirements aimed at controlling all
movements of people(819) do not in themselves come within the
scope of the Convention. Nonetheless they have a direct
bearing on the possibility for people to avoid being called up
as "residents" for forced or compulsory labour, under the
Village Act and the Towns Act as well as in actual practice.
This particularly affects the Rohingyas population in northern
Rakhine State.
 
 
(3) Legislation on compulsory military service
 
477. The Commission notes that the provisions of the People's
Militia Act, as adopted in 1959, appear to be covered by the
exception in Article 2(2)(a) of the Convention.(820) The
Commission is not aware of any subsequent modifications of the
Act, nor does the Commission know whether the Act has been
brought into force.(821) Where soldiers have been used on
civilian development projects, as claimed by the
Government,(822) involvement of conscripts would not have been
compatible with the terms of the exception in Article 2(2)(a)
of the Convention and would thus be contrary to the obligation
under Article 1(1) of the Convention, whereas the use for such
purposes of career soldiers having joined the armed forces on
a voluntary basis, falls outside the scope of the Convention.
 
 
(4) Sanctions for illegally imposing forced or compulsory
    labour
 
478. Section 374 of the Penal Code, quoted in paragraph 258
above, complies with the first requirement of Article 25 of
the Convention, namely that "The illegal exaction of forced or
compulsory labour shall be punishable as a penal offence".
Whether the penalties under section 374, which may range from
a fine to imprisonment of up to one year or both, do comply
with the second requirement of Article 25 of the Convention,
namely that they "are really adequate", could only be
appreciated if they were "strictly enforced", as Article 25 of
the Convention  furthermore requires. In the absence of any
indication that section 374 of the Penal Code was ever
applied,(823) the Commission is bound to point out that
penalties under that provision, as well as under Article 25 of
the Convention, are to be imposed for the exaction of forced
or compulsory labour that is found illegal. Thus, only a
requisition of labour and services that is not covered by the
very wide provisions of the Village Act or the Towns Act
could, in theory, be punished at the present stage under
section 374 of the Penal Code, while forced labour imposed in
violation of the Convention but in conformity with the Village
Act or the Towns Act might not be punishable at the national
level. However, as set out in paragraph 204 above, any person
who violates the prohibition of recourse to forced labour in
international law is guilty of an international crime and thus
bears an individual criminal responsibility. Under Principle
II of the Principles of International Law Recognized in the
Charter of the Nuremberg Tribunal(824) and in the Judgment of
the Tribunal, "The fact that internal law does not impose a
penalty for an act which constitutes a crime under
international law does not relieve the person who committed
the act from responsibility under international law".(825)
 
 
B. NATIONAL PRCTICE CONSIDERED 
   IN THE LIGHT OF THE CONVENTION
 
479. In this part of the chapter, the Commission will set out
its findings as to compliance with the Convention of national
practice, as established in Chapter 12. The Commission will
consider the applicability of the definition given in Article
2(1) of the Convention and that of the exceptions listed in
Article 2(2) to the various forms of labour and service
described in Chapter 12, the relevance of the conditions and
guarantees set out in Articles 4 to 24 of the Convention and,
most importantly, the obligations of the Government under
Articles 1 and 25 of the Convention with regard to national
practice.
 
 
(1) Requisition of labour
 
480. System of call-up and variations. As indicated in Part B
of Chapter 12(826) and confirmed by the evidence set out in
Part C of Chapter 12,(827) a general pattern is apparent in
the methods used by the authorities across the country to
requisition labour: 
 
-     written and sometimes oral orders from higher
administrative authorities or the military are received by the
village head or by ward administration officials; 
 
-     these orders either specify the number of persons to be
provided, or the amount of work to be completed by residents; 
 
-     the work may be for portering, military camp work, other
work in support of the military, work on agricultural, logging 
and other production projects undertaken by the authorities,
the construction and maintenance of roads, railways and
bridges, other infrastructure work or other general urban
work; 
 
-     it is for the village head or the ward administration
officials to make the necessary arrangements by instructing a
certain number of households to provide the labour required,
rounding up people, sending them as a punishment for some
minor offence or holding a "lottery" to choose which of the
residents have to go.(828) In cases varying from this general
pattern, persons are directly rounded up by troops, without
recourse to the village head or ward administration
officials.(829) Whatever the method used, the Commission's
finding on the evidence is that, with the only exception of
substitutes occasionally hired by households or individuals
called up to contribute labour, those required to perform work
or service have not offered themselves voluntarily for that
work or service. 
 
481. Copies of several hundred orders addressed to the village
head or ward administration officials were submitted to the
Commission;(830) none of these make any reference to powers
under the Village Act or the Towns Act(831) or under any other
legislation. Nevertheless, the machinery used for the
requisition of the labour and services of residents, as
described in Chapter 12 and referred to above, generally
follows the pattern laid down in the Village Act and the Towns
Act -- with the notable exception of cases in which civilians
are directly rounded up by troops for portering, be it in an
organized or random fashion.(832)
 
482. "Menace of any penalty".(833) As indicated above,(834)
orders for the requisition of labour or services do not make
reference to powers under the Village Act or the Towns Act or
any other legislation. Neither do they specifically refer to
the penalties laid down in section 12 of the Village Act and
section 9A of the Towns Act for failure to comply with a
requisition,(835) although a few of the orders that were
submitted to the Commission refer in general terms to
punishment under the legislation in force.(836) However, as
indicated in Part B of Chapter 12(837) and confirmed by the
evidence set out in Part C of Chapter 12,(838) the written
orders to provide porters and labourers which are sent to
village heads by the local military or civil administration
typically contain some overt or implied threat to anyone
refusing to comply.(839) Penalties and reprisals imposed in
practice for failing to comply with labour demands are very
harsh and include physical abuse,(840) beatings,(841)
torture,(842) rape(843) and murder.(844) Also, in order to be
exempted from labour assignments given to them, people have to
pay sums of money,(845) and likewise people directly rounded
up by troops for portering may obtain their release only by
paying a substantial sum of money.(846) Thus, the labour and
services imposed in practice on the civilian population by
formal requisition or direct round-up, as evidenced in Chapter
12, are covered by the definition given in Article 2,
paragraph 1, of the Convention, which refers to "all work or
service which is exacted from any person under the menace of
any penalty(847) and for which the said person has not offered
himself voluntarily" -- the only exception being labour or
services performed by any substitutes hired by some of those
called up for labour or services. 
 
483. Prison labour. Besides the requisition or round-up of
residents of villages and wards, the evidence reflected in
Chapter 12 also points to the use of prison labour for
portering(848) as well as public works projects.(849) The
Convention exempts from its scope "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".(850) Prima
facie, these conditions appear to be met where prison labour
is used by the authorities.(851) However, the findings of the
Commission are that in certain cases, assignments given to
prisoners shortly before they were due to be released extended
beyond the expiration of their sentence.(852) In such cases,
the work or service exacted from these persons is no longer
the consequence of a conviction in a court of law and becomes
forced labour under the Convention,(853) since they did not
volunteer for the assignment and cannot leave it, under the
menace of punishment no lesser than that held out to the
general population.(854)
 
 
(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 
 
484. In the following section, the Commission will examine the
applicability of the exceptions listed in Article 2(2)(a),
(b), (d) and (e) of the Convention to the various types of
work or services, reflected in Chapter 12, for which the
population is being called up or rounded up.
 
 
(a) Portering
 
485. Portering, done by civilians for the military, is neither
"exacted in virtue of compulsory military service laws" nor
"part of the normal civic obligations of the citizens of a
fully self-governing country", and thus does not come under
the exceptions in Article 2(2)(a) or (b) of the Convention.
 
486. As regards Article 2(2)(d) of the Convention, concerning
work or service exacted in cases of emergency, including war,
the Commission has noted(855) that the concept of emergency
under the Convention involves a sudden, unforeseen happening
that endangers the existence or well-being of the population
and calls for instant countermeasures, which must be strictly
limited in duration and to the extent required to meet the
danger. While the conflicts between the Myanmar Government and
a number of national minorities and other groups over many
years may be considered as having taken the form of armed
conflicts, the Government itself has stated in 1992 to the
International Labour Conference that it was "no longer
conducting military campaigns".(856) Even while it was, the
requisition or round-up of civilians for portering, as
reflected in the many testimonies submitted to the Commission,
had not been in reaction to a case of emergency, as described
above, but was merely the habitual way for the armed forces
and paramilitary units to shift to the civilian population the
burden of any labour they wished to be done and which
otherwise would have to be performed by army personnel. None
of the oral testimonies before the Commission concerning
portering refers to a situation that would qualify as an
emergency under Article 2(2)(d) of the Convention. Since
portering for the military would neither come under "minor
communal services" as defined in Article 2(2)(e), this
pervasive practice is altogether outside the scope of what is
admitted by Article 2(2) of the Convention, with the only
exception of convicted prisoners required to do portering
during the term of their sentence (Article 2(2)(c) of the
Convention).
 
________________________
 
NOTES
 
 
 
798. Para. 205 above. 
 
799. See paras. 207 to 213 above. 
 
800. See paras. 214 to 218 above. 
 
801. See para. 205 above. 
 
802. See the text in paras. 238 and 239 above. 
 
803. See the text in para. 240 above. 
 
804. See the text in paras. 239 and 240 above. 
 
805. See para. 206 above. 
 
806. See para. 243 above. 
 
807. Section 9(b) of the Towns Act and section 11(d) of the
Village Act, read together with section 8(1)(g), (n) and (o)
of the Act. 
 
808. See the criteria of the Convention in paras. 212 and 213
above. 
 
809. See paras. 121 and 145 above. 
 
810. See para. 218 above. 
 
811. See paras. 217 and 122 et seq. above. 
 
812. See paras. 215 et seq. above and the full text of the
Convention in Appendix XIII. However, with regard to
compensation for accidents or sickness under Art. 15 of the
Convention, see para. 72 of the Executive Orders made under
the Village Act, quoted in para. 247 above. 
 
813. See para. 245 above. 
 
814. See para. 246 above. 
 
815. See paras. 299 et seq., in particular 408 et seq. and 444
et seq. above. 
 
816. See para. 479 et seq. 
 
817. See paras. 251 to 254 above. 
 
818. See paras. 249 and 250 above. 
 
819. See para. 249 and its second footnote (296) above. 
 
820. See paras. 255 and 256 above. 
 
821. See para. 257 and its footnote above. 
 
822. See para. 115 above and the evidence in paras. 412 and
438. 
 
823. See para. 284 above for indications that it was not. 
 
824. cf. para. 204, second footnote (213). 
 
825.  "Yearbook of the International Law Commission 1950",
Vol. I, p. 374. See also La Rosa, "Dictionnaire de droit
international pnal", PUF, Paris, 1998, p. 69. 
 
826. See in particular para. 286 et seq. above. 
 
827. See paras. 302 et seq., 340 et seq., 367 et seq., 384,
390, 429, 430, 437, 455 and 459 above. 
 
828. See paras. 286, 287, 292, 302, 340, 367, 384, 390, 430,
437, 455 and 459 above. 
 
829. See paras. 302, 307, 308, 328, 329, 330, 333, 341, 343,
367 and 455 above. 
 
830. Only a few samples are included in Appendix XI. 
 
831. See paras. 237 to 240 above. 
 
832. See paras. 302, 307, 308, 328, 329, 330, 333, 341, 343,
347, 367 and 455 above. 
 
833. See Art. 2, para. 1, of the Convention. 
 
834. See para. 481. 
 
835. See paras. 239 and 240 above. 
 
836. See Appendix XI. 
 
837. See paras. 289, 292 and 295 above. 
 
838. See paras. 302, 307, 312, 317, 340, 349, 350, 367, 373,
376, 387, 414, 418, 429, 433, 434, 441 and 442. 
 
839. See paras. 289, 340 and 429. 
 
840. See paras. 292, 343, 367, 418, 433, 435 and 441. 
 
841. See paras. 292, 311, 317, 349, 376, 413 and 418. 
 
842. See paras. 292, 418 and 435. 
 
843. See paras. 292, 418 and 441 and its footnote (734). 
 
844. See paras. 311, 317, 349 and 418. 
 
845. See paras. 295, 312, 373, 387, 414, 434 and 442. 
 
846. See paras. 302 and 307. Moreover, beyond the many
instances where people are called up or directly rounded up
for labour or services, there are cases where households,
unable to comply with various tax payments imposed on them,
are required to supply additional labour or services in lieu
of the tax payments -- see para. 295 above. 
 
847. For the notion of "penalty", see also para. 206 and its
second and third footnotes (220 and 221) above. 
 
848. See paras. 303 and 349, second footnote (461) above. 
 
849. See paras. 412 and 438 above. 
 
850. Art. 2(2)(c) of the Convention. 
 
851. As regards the condition that the work be the
"consequence of a conviction in a court of law", information
brought to the attention of the Commission did indicate
however that convictions in Myanmar were often not the result
of a fair trial. It was indicated that this was particularly
the case for political prisoners, who until 1992 were
regularly tried by military tribunal. In July 1989 Martial Law
Order No. 2/89 established military tribunals with authority
to waive "unnecessary" witnesses, indict offenders without
hearing prosecution witnesses and reject the recalling of
witnesses who had already testified. No right of appeal was
provided for, except to the Commander-in-Chief of the Armed
Forces. Military tribunals were empowered to give three kinds
of sentence: not less than three years' imprisonment with
labour, life imprisonment or the death penalty. Martial
Law Order No. 2/89 was revoked by Order No. 12/92, issued on
26 Sep. 1992. See Liddell, V/24-27; Lin, VII/10B12. See
also Amnesty International, 090-3646 to 47, 091-3681. 
 
852. See para. 303 above and Liddell, V/23. 
 
853. See para. 206 above. 
 
854. See para. 482 above. 
 
855. See para. 212 above. 
 
856. See para. 132 above. 
 
 
[END OF SLICE 17]