Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

The Committee has noted the information provided by the Government to the Conference Committee on the Application of Standards in a communication received on 6 June 2010, to which it attached its response to the Committee’s comments made under the present Convention and the Worst Forms of Child Labour Convention, 1999 (No. 182). It has also noted the discussion that took place, in June 2010, in the Conference Committee, which has requested the Government, in its conclusions, to provide a full report for examination by the Committee of Experts at its forthcoming session. The Committee has further noted the observations dated 26 August 2010 received from the International Trade Union Confederation (ITUC), concerning the application of the Convention by Sudan, which was sent to the Government, on 7 September 2010, for any comments it may wish to make on the matters raised therein.

The Committee notes that no report has been supplied by the Government at the request of the Conference Committee, and no comments have been provided in response to the above observations by the ITUC. The Committee firmly hopes that the Government will provide a full report for examination by the Committee at its next session, as well as its comments on the observations by the ITUC.

Articles 1(1) and 2(1) of the Convention. Abolition of forced labour practices. For many years, the Committee has been referring, in relation to the application of the Convention, to the continuing existence of the practices of abduction and forced labour exploitation, which affected thousands of women and children in the regions of the country where an armed conflict was under way. The Committee recalls that this case has been discussed repeatedly over the years in its own observations and on numerous occasions by the Conference Committee. The Committee has repeatedly pointed out that the situations concerned constitute gross violations of the Convention, since the victims are forced to perform work for which they have not offered themselves voluntarily, under extremely harsh conditions, and combined with ill treatment which may include torture and death. The Committee has considered that the scope and gravity of the problem are such that it is necessary to take urgent action that is commensurate in scope and systematic. The Government has been therefore requested to provide detailed information on the measures taken to combat the practice of forced labour through abduction of women and children and to ensure that, in accordance with the Convention, penal sanctions are imposed on perpetrators.

Conference Committee on the Application of Standards. The Committee notes that, in its conclusions adopted in June 2010, the Conference Committee noted the Government’s efforts to improve the human rights situation in the country and, in particular, information about the recent elections which were held in the country, which were considered as a new step towards the full implementation of the Comprehensive Peace Agreement of 2005. While noting these positive developments, as well as the Government’s renewed statement that after the end of the civil war abductions had stopped completely, the Conference Committee observed once again that there was no verifiable evidence that forced labour had been completely eradicated in practice. In this regard, the Conference Committee noted with regret that the latest statistics concerning the Committee for the Eradication of Abduction of Women and Children (CEAWC) activities (showing the numbers of cases of victims identification and reunification with their families) dated back to May 2008, and that no updated information of this kind had been provided by the Government. The Conference Committee noted once again the convergence of allegations and the broad consensus among United Nations bodies, the representative organizations of workers and non-governmental organizations concerning the continuing existence and scope of the violations of human rights and international humanitarian law in certain regions of the country. It also noted with concern that there was a lack of accountability of perpetrators and that victim rehabilitation measures were not sufficient. The Conference Committee strongly urged the Government to pursue its efforts, including through the CEAWC, in order to ensure the full application of the Convention, both in law and in practice. It expressed the firm hope that the Government would provide detailed information in its next report for examination by the Committee of Experts, indicating, in particular, whether the cases of exaction of forced labour had stopped completely, whether the victims had been reunified with their families and received adequate compensation and rehabilitation, and whether perpetrators had been punished, particularly those unwilling to cooperate. Noting the Government’s request for technical assistance from the Office, the Conference Committee invited the ILO to provide the necessary assistance.

United Nations bodies. The Committee previously noted that, in United Nations Security Council resolution 1881 (2009), the Security Council had expressed concern at the continued seriousness of the security situation and deterioration of the humanitarian situation in Darfur and reiterated its condemnation of all violations of human rights and international humanitarian law in that region. The resolution emphasized the need to bring to justice the perpetrators of such crimes and urged the Government of Sudan to comply with its obligations in this respect. The Committee also noted a report of the Special Rapporteur on the situation of human rights in the Sudan (A/HRC/11/14, June 2009), in which the Special Rapporteur observed that, despite some positive steps in the area of law reform, improvement of the human rights situation on the ground continued to remain a significant challenge. Thus, in Darfur, human rights violations and breaches of international humanitarian law continued to be committed by all parties; in southern Sudan, several hundred civilians were killed in tribal conflict and attacks by Lords Resistance Army (LRA) and a number of women and children were abducted. According to the report, impunity remained an ongoing and serious concern in all areas of Sudan, allegations of violations of human rights were not duly investigated, many perpetrators of serious crimes had not been brought to justice and reparations had not been provided to victims. The Special Rapporteur reiterated all previously unimplemented human rights recommendations contained in her reports and, in particular, a recommendation to ensure that all allegations of violations of human rights and international humanitarian law are duly investigated and that perpetrators are promptly brought to justice (paragraph 92(d)).

The Committee notes the report of the independent expert on the situation of human rights in the Sudan (A/HRC/15/CRP.1) issued pursuant to Decision 14/117 by the Human Rights Council and noted by Resolution 15/27 adopted by the Human Rights Council (A/HRC/RES/15/27), which provided an overview of developments and activities during the period from 1 May to 31 August 2010. The report states that, during the abovementioned reporting period, while the Government continued to take steps towards democratic transformation, the general human rights situation in the Sudan deteriorated. In Darfur, clashes between government forces and the armed movements as well as inter-communal violence continued to cause further death and displacement among the civilian population. The situation in Southern Sudan continued to be characterized by “high volatility in localized areas affecting the civilian population, especially women and children, as well as increasing human rights violations by the Sudan People’s Liberation Army (SPLA)”. The report states that concrete measures aimed at ensuring law and order and addressing accountability and impunity should be urgently considered by both the national Government and the government of southern Sudan. The report reiterates all previously unimplemented human rights recommendations, including those made by the Special Rapporteur on the situation of human rights in the Sudan, and recommends to the Government, inter alia, to “ensure that all allegations of violations of human rights and international humanitarian law are duly investigated and that the perpetrators are brought to justice promptly, in particular those with command responsibilities”.

Comments from workers’ organizations. In the observations dated 26 August 2010 referred to above, the ITUC noted that there continued to be serious problems with forced labour and compensation of its victims. According to the ITUC, the practice of abduction and forced labour exploitation is still in place affecting thousands of women and children in armed conflict areas. The Government continues to refuse to punish forced labour offenders, insisting that such cases will be settled through the traditional community chief mediation process. However, in the meantime, there is no documented evidence of such informal community mediation process having yielded positive results. The ITUC further alleges that there are still cases of involuntary returns of some abductees and extensive cases of unaccompanied children, most of whom have lost their families due to death and displacement in the war. The ITUC considers that the Government must strengthen the work of the CEAWC in terms of prosecution of perpetrators of abduction and forced labour, as a number of perpetrators remain unwilling to cooperate. Finally, the ITUC welcomes the Government’s willingness to accept technical assistance from the ILO.

The Government’s response. The Committee notes that the Government’s response to the Committee’s comments, attached to a communication received on 6 June 2010 referred to above, contains the information already supplied to the ILO in November 2008, in response to a communication by the ITUC dated 29 August 2008. This information relates, inter alia, to the activities of the CEAWC up to the end of April 2008, including statistics concerning documented cases of abductions and cases of reunification of abducted persons with their families, which has already been noted by the Committee. The Government confirms once again its strong and continued commitment to completely eradicate the phenomenon of abductions and to provide continued support to the CEAWC. It also reiterates its previous statement that abductions have stopped completely, which, according to the Government, has also been confirmed by the Dinka Chiefs Committee (DCC). For that reason, the Government has urged once again that this case be dismissed and its discussion stopped in the ILO, since it has already been satisfactorily dealt with according to the reports of the UN specialized agencies. Concerning the situation in Darfur, the Government reiterated its view that, since it was under examination by the UN Security Council and the African Union, the issues concerned should not be discussed in the ILO, in order to avoid duplication of work. As regards the prosecution of perpetrators, the Government repeated its previous indications that the CEAWC, which was initially of the view that legal action was the best measure to eradicate abductions, had been requested by all the tribes concerned including the DCC not to resort to legal action, unless the amicable efforts of the tribes are not successful. The Government reiterated its view that legal action takes a very long time and is very expensive, and that it could not build peace among the tribes concerned and did not correspond to the spirit of national reconciliation. The Committee also notes the statement of the Government representative to the Conference Committee in June 2010 that bringing perpetrators to justice would have a negative impact on helping people return or settle; however, the Government has credited those who wished to submit claims with available information. He also stated that the Government had done what it could to bring the perpetrators to justice, however it could not force people to bring up complaints, but just encourage them to do so.

While noting this information, the Committee strongly urges the Government once again to redouble its efforts in order to completely eradicate the forced labour practices which constitute a gross violation of the Convention, and in particular, to resolve the cases of abductions in all the regions of the country and to ensure the victims’ right to be reunified with their families. While noting the Government’s renewed commitment to resolve the problem, the Committee expresses the firm hope that the Government will continue to provide detailed information on the liberation and reunification process, supplying updated and reliable statistics supported by CEAWC reports. Having also noted the Government’s repeated statement that abductions have stopped completely, the Committee observes with concern that this statement is in contradiction with other reliable sources of information. It again refers in this connection to the broad consensus among the United Nations bodies, the representative organizations of workers and non-governmental organizations concerning the continuing existence and scope of the violations of human rights and international humanitarian law in certain regions of the country. The Committee reiterates the need for the Government to take urgent measures, in accordance with the recommendations of the relevant international bodies and agencies, to put an end to all human rights violations and widespread impunity, which would help to create better conditions for the full observance of the forced labour Conventions. Noting also the Government’s request for technical assistance of the ILO, the Committee hopes that the Government will take all the necessary measures, with the Office’s assistance, in order to ensure full compliance with the Convention, both in law and in practice, and that the Government will provide, in its next report, information on the progress made in this regard.

Article 25. Penalties for the illegal exaction of forced or compulsory labour. The Committee previously noted the Criminal Code provisions punishing the offence of abduction with penalties of imprisonment, and requested the Government to take measures to ensure that, in accordance with the Convention, penal sanctions are imposed on perpetrators. The Committee has noted the Government’s repeated indication in its reports that the CEAWC, which was initially of the view that legal action was the best measure to eradicate the abductions, has been requested by all the tribes concerned not to resort to legal action, unless the amicable efforts of the tribes are not successful. The Government reiterates its view that, within the context of the comprehensive peace process, there is an argument for not pursuing prosecutions against those responsible for abductions and forced labour in the spirit of national reconciliation.

The Committee recalls again in this connection that, under Article 25 of the Convention, “the illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and it shall be an obligation on any Member ratifying this Convention to ensure that the penalties imposed by law are really adequate and are strictly enforced”. The Committee therefore considers that the failure to apply penal sanctions in respect of perpetrators is contrary to this provision of the Convention and may have the effect of creating an environment of impunity for abductors who exploit forced labour.

The Committee urges the Government to take all the necessary measures to ensure that legal proceedings are instituted against perpetrators, particularly against those unwilling to cooperate, and penal sanctions will be imposed on persons convicted of having exacted forced labour, as required by the Convention. The Committee again requests the Government to provide, in its next report, information on the application in practice of the penal provision punishing the offence of abduction, as well as the provisions punishing kidnapping and the exaction of forced labour (sections 161, 162 and 163 of the Criminal Code), supplying sample copies of the relevant court decisions and indicating the penalties imposed.