ILO Report Extract, Part 3 of 4

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REPORT OF THE ILO COMMISSION OF INQUIRY ON FORCED LABOUR IN BURMA

Below, please find, in three parts, extracts from parts IV (Examination of
the case by the Commission) and V (Conclusions and Recommendations) of this
report.  Footnotes and some sections of text have been removed to make this
posting as concise as possible.

Text (ASCII) versions of the Report can be obtained by email from the Burma
Peace Foundation in 50 sections of up to 37Kbytes (total 1.298 MB).  Send
an email message to darnott@xxxxxxxxxxx requesting the Report (expect a
delay of several days as a list of recipients is built up).

The Report is also on the ILO website:
http://www.ilo.org/public/english/20gb/docs/gb273/myanmar.htm

Paper copies of the Report can be obtained from ILO Distribution -- contact
Mr Dunand, Email prodoc@ilo,org. 

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

(7) Other infrastructure work

(a) Documentary material

444. Nature and conditions of work. In addition to the use of forced labour
on the construction of roads, railways and associated infrastructure, the
Commission also received information that people from most parts of Myanmar
were forced to work on the construction and maintenance of other
infrastructure projects. These projects included irrigation works, dams,
canals, power-stations, a gas pipeline, airports, helipads, schools, hotels
and a museum, as well as infrastructure related to events such as the
student sport festival which takes place annually in a different State or
Divisional capital.(738)

445. The general nature and organization of such work was the same as that
described for road and rail infrastructure.(739)

[ ? ]

448. There was evidence before the Commission in the form of secondary
statements that forced labour was used for the construction of helipads in
Yebyu township in Taninharyi Division: helipad at Byu Gyi village, another
helipad between Kadaik and Ohnbinkwin, and a third helipad between
Migyaunglaung and Mayan Chaung, all in 1995.(746) There was also evidence
in the form of a secondary statement relating to a helipad being
constructed in the same region in 1996.(747) In a communication addressed
to the Commission, TOTAL stated that most of the helipads situated on the
pipeline route had been constructed by TOTAL or by companies working for
TOTAL and applying its code of conduct, although TOTAL did not know under
what conditions other helipads in the region had been constructed.(748)

[ ? ]

452. There was evidence before the Commission in the form of secondary
statements that forced labour was used until May 1995 for ground clearance
work to provide access to survey teams for the Yadana gas pipeline project
in Yebyu township, Tanintharyi Division.(761) In a communication addressed
to the Commission TOTAL stated that it was wrong to claim that the
preparatory clearing work could have been undertaken by forced labourers
for the purpose of facilitating the access of the project teams. During the
years 1993 and 1994, clearing work had been carried out under the
supervision of TOTAL by the Compagnie gnrale de gophysique (CGG).(762) In
view of the contradiction between the facts presented, and since the
Commission was denied access to Myanmar to supplement its evidence, no
finding on this matter could be made.


(b) Oral testimony

453. Twenty-two witnesses gave evidence covering the period between 1993
and 1998(763) concerning infrastructure works involving forced requisition
of persons by public authorities carried out in Kayah, Kayin, Mon, Rakhine
and Shan States and in the Ayeyarwady, Bago and Sagaing Divisions.(764)

454. The infrastructure works consist, inter alia, of construction of
irrigation canals,(765) drainage channels,(766) airports,(767) a
hydroelectric power station,(768) villages,(769) museums(770) or
schools,(771) laying of electrical cables(772) or telephone lines,(773) and
general infrastructure works in preparation for the Student Sport Festival,
including levelling and preparation of a sports field.(774) The irrigation
work generally involved hundreds of persons coming from dozens of villages
that were often far from the work site. As for telephone lines, a witness
gave evidence that he had to cut logs for the line between Panglong and
Laikha.(775)

455. Work organization and working conditions are similar to those
described for road and railway infrastructure.(776) [ ? ].

456. Each village or group(779) is assigned a section of the project to be
completed.(780) To this end, one person per family is usually
requisitioned(781) and the work is divided up in accordance with a
pre-established rota among the families of the village or group involved.
Men, women and children - some of them barely ten years old(782) -- work on
these sites.

457. The workers are neither paid(783) nor fed(784) and sometimes have to
spend several nights on the site of their work assignment.(785) Several
witnesses stated that they could avoid having to perform this work if a
replacement was found.(786) Finally, the conditions under which the work
has to be performed are arduous; the workers are frequently subjected to
ill-treatment or other violations of fundamental human rights, including
acts of torture.(787)


(8) General work

(a) Nature and condition of work

458. Information was also provided to the Commission that people throughout
the country were forced to carry out regular tasks such as cleaning and
beautifying public areas, particularly when important officials were due to
visit. Because the nature of the work meant that it was mostly applicable
to urban areas, it was mostly urban residents who had to carry it out.
Government employees in particular were coerced into doing this work during
the weekends.(788)

459. The ward authorities were usually responsible for organizing such
work. Typically, one person from each household in the ward would have to
participate for one day per weekend to carry out these tasks. Soldiers were
sometimes used to supervise this work.(789)

460. Residents were also required to maintain their houses to certain
specifications, or face eviction. Such specifications could include keeping
the house painted, or replacing thatch roofs with a corrugated-iron roof.(790)


(b) Specific examples from documentary material and oral testimony

461. The Commission obtained evidence on this topic from several parts of
the country. In Myaungmya in Ayeyarwady Division, local authorities
required one person from each household to work every Saturday cleaning
roads and the school and hospital compounds.(791) Similarly, one person per
family had to do various jobs in the city of Mandalay.(792) Forced labour
was also regularly used for cleaning up the area around the lake at Hpa-an
in Kayin State(793) as well as for half a day every Saturday at Loikaw in
Kayah State, both around the town,(794) and at an army camp.(795) General
cleaning and maintenance work also had to be done by one member of each
household every Saturday in Kawthaung town in Tanintharyi Division.(796)
Finally, forced labour was used for cleaning the town of Mrauk-U in Rakhine
State in 1996 in preparation for a visit by a high-level government
official.(797)

* * *

462. In reaching these findings of fact as set out in section C, the
Commission was impressed with the truthfulness of the accounts given by the
witnesses from whom it heard direct testimony. The questions asked by the
Commission of these witnesses probed issues with a view to establishing
veracity, which included issues about any political affiliation or
membership of any opposition group. In many instances the witnesses were
not educated people and the Commission was struck by the fact that overall
they were careful to draw the distinction between matters which they had
seen or experienced, and matters of which they had only heard from others.
The Commission was also struck by their candour and absence of
exaggeration. For these reasons, the Commission had no hesitation in
relying on their testimony.

463. In reaching its findings of fact in sections B and C, where those
findings relied on documentary evidence as discussed, the Commission had
regard to the relative probit y of documentary material as indicated. The
Commission was assisted in this task by its confidence in the oral
testimony of witnesses and by the extent to which the oral testimony
corroborated so many aspects of the documentary material, both as to
general patterns and specific detail.

464. Having regard to the vast amount of documentary material available,
the Commission took account of what it considered as the most reliable
information and although many of its findings could be supported by other
documentation, it has footnoted the major sources and not all sources.
Again, the Commission is confident in these findings.

[ ? ]


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 PRACTICE 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).

 (b) Military camp work and other work in support of the military

487. The work exacted from civilians for the construction, maintenance,
repair and cleaning of military camps, for cooking, collecting water or
firewood, washing clothes and acting as messengers for the camps is
described in paragraphs 351 to 373 above. Other tasks that civilians are
forced to perform, such as acting as guides for the military, as human
shields, as minesweepers and as sentries are set out in paragraphs 374 to
388. None of this work is "exacted in virtue of compulsory military service
laws" and none is "part of the normal civic obligations of the citizens of
a fully self-governing country". Thus, the exceptions in Article 2(2)(a)
and (b) are not applicable; nor is Article 2(2)(e), dealing with "minor
communal services".

488. What has been stated above(857) to explain why forced portering does
not come under Article 2(2)(d) of the Convention, which concerns work or
service exacted in cases of emergency, applies all the more to work exacted
from civilians for the construction and servicing of military camps -- work
that is unrelated to any emergency in the sense of a sudden, unforeseen
happening that endangers the existence or well-being of the population and
calls for instant countermeasures. Similarly, most of the services exacted
in the way of acting as guides, human shields, minesweepers and sentries
are routinely imposed on residents and not related to any sudden,
unforeseen happening that calls for instant countermeasures. Moreover,
where civilians are forced to act as guides, human shields, minesweepers or
sentries for the military, there may be a real danger to the existence or
well-being of part of the population, but that is the kind of danger for
which the exigencies of the situation would call on the military to protect
the civilian population, while the forced labour exacted in Myanmar in such
cases shifts the dangerous tasks from the military to the civilian
population. This is contrary to the concept of "emergency" expressed in the
Convention. In Myanmar, the civilian population is forced to protect the
military. Thus, the work imposed on residents for military camps and in
support of the military does not come under any of the exceptions in
Article 2(2) of the Convention.


(c) Forced conscription

489. Findings of the Commission set out in Chapter 12(858) indicated that
there was regular forced recruitment throughout Myanmar, including that of
minors, into the Tatmadaw and various militia groups, and that this did not
occur pursuant to any compulsory military service laws, but arbitrarily.

490. As indicated above,(859) the provisions of the People's Militia Act,
as adopted in 1959, which provide for compulsory military service,(860)
appear covered by the exception in Article 2(2)(a) of the Convention, but
the Commission is neither aware of any subsequent modifications of the Act
and does not know whether the Act has been brought into force.

491. In view of its insufficient knowledge of the state of the relevant
legislation, and in the absence of meaningful evidence gathered directly by
the Commission to confirm the factual information submitted concerning
forced recruitment, the Commission has not reached a finding on the
compatibility or not of any military conscription with the Convention.


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

492. According to the findings reached in Chapter 12, villagers, and to a
lesser extent urban residents, are forced to work on a variety of projects
undertaken by the authorities, in particular the military throughout the
country. These projects include cultivation of rice, other food crops, cash
crops such as rubber, fish and shrimp farms, kilns for producing bricks,
logging and manufacturing activities, which are likely to enable the
military either to meet their material needs or produce profit. The
military mobilize the Myanmar population, forcing the people to carry out
these activities for the military in difficult conditions without any share
in the results.(861) This forced labour does not correspond to any of the
five exceptions from the scope of the Convention listed in Article 2,
paragraph 2.(862) In particular, it does not come under "minor communal
services", inter alia, because it is not "performed by the members of the
community in the direct interest of the said community";(863) nor is such
labour related to any emergency, i.e. "any circumstance that would endanger
the existence or the well-being of the whole or part of the population".(864)


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

493. As the Commission details in Chapter 12, there is large scale use of
forced labour across the whole population on the construction of roads and
railways.(865) With regard to the cases in which prisoners or members of
the armed forces were required to work on such projects,(866) the
Commission refers to the explanations given above concerning the
compatibility or not of such assignments with the Convention.(867) As
regards the ordinary civilian population which supplies the vast majority
of the labour called up for the construction and maintenance of roads,
railways and bridges, and leaving aside the cases in which freely employed
workers were employed on such work,(868) their call-up for such work comes
under the definition of forced or compulsory labour in the Convention(869)
and needs to be examined in the light of the exceptions provided for in
Article 2, paragraph 2, of the Convention.(870)

494. The requisition of the population for the construction and maintenance
of roads, railways and bridges does not come under the exceptions
concerning compulsory military service (Article 2(2)(a) of the Convention),
normal civic obligations of the citizens of a fully self-governing country
(Article 2(2)(b)), prison labour (Article 2(2)(c)) or emergency work
required by an event endangering the existence or the well-being of the
whole or part of the population (Article 2(2)(d)). Neither does the
construction or maintenance of railway lines come under "minor communal
services" (Article 2(2)(e) of the Convention).(871) This follows from the
sheer size of the projects,(872) which turn upon national or regional
needs, rather than communal interests, from the numbers of workers and
workdays involved,(873) the distance between the worksite and the workers'
villages(874) as well as from the absence of consultation.(875)

495. Similarly, with regard to the construction and maintenance of roads
and bridges, the Commission has reached the following conclusions on the
evidence before it, in the light of the criteria in Article 2(2)(e) of the
Convention which determine the limits of the exception for "minor communal
services".(876) The Commission, as set out in Chapter 12, found that forced
labour was used on the construction or improvement of major roads linking
towns in many parts of the country as well as the construction of extensive
networks of roads between towns and villages, particularly in areas
recently occupied by the military after offensives against opposition
groups, or roads linking army camps to these networks or to one another,
and the building of roads to sites of (forced) relocation.(877) Call-up of
labour for these works places a heavy burden on the population, all the
more since roads often have to be repaired or completely rebuilt after
every rainy season.(878)

496. Thus, the findings of fact set out in Chapter 12 regarding the
construction and maintenance of roads and related infrastructure show that
the work is neither "minor" nor turns upon the interests of a local
community, but that it is imposed either in the wider interests of national
or regional development, or for the specific needs of the military.
Moreover, roads built or renovated are reserved for the exclusive use of
the authorities,(879) and in the view of those forced to work on such
projects, they would not benefit from them, in part because local forms of
transport (such as bullock carts) are not permitted to use these roads,
built for motor vehicles, which the vast majority of villagers do not
own.(880) Finally, the work is imposed by the military, without
consultation of the local communities in regard to the need for such
services,(881) as required in Article 2(2)(e) of the Convention. The
Commission concludes that by all criteria that are applicable under the
Convention, the exaction of labour throughout Myanmar for the construction
and maintenance of roads and bridges, as well as railway lines, does not
come under any of the exceptions in Article 2, paragraph 2, of the Convention.