Article 32 of the Child Law (1993) states that the following children are in need of protection and care:
a) one who has no parents or guardian;
b) one who earns his living by begging;
c) one who is depraved, a character that is uncontrollable by his parents or guardian;
d) one who is in the custody of a cruel or wicked parent or guardian;
e) one who is of unsound mind;
f) one who is afflicted with a contagious disease;
g) one who uses a narcotic drug or a psychotropic substance;
h) one who is determined as such from time to time by the Social Welfare Department.
This definition appears to be exhaustive, yet it does not include children in conflict with the law, refugee or displaced children, children who are physically and mentally abused. In addition, the Child Law is not consistent with the provisions of the convention. It fails to mention the need for special protection measures for children inexceptionally difficult circumstances, children deprived temporarily or permanently of their family environment, children in situations of emergency (CRC Articles 22, 38 and 39), children in conflict with the law (CRC Articles 40, 37 and 39), children in situations of exploitation, including physical and psychological recovery and social reintegration (CRC Articles 32, 33, 34, 35, 36 and 39), and children belonging to a minority or indigenous group (CRC Article 30).
Section 32(d) above does not adequately cover children who may be sexually abused and economically exploited within a family. The labeling of parents or guardians as "evil or wicked" does not go far enough to define the kinds of abuse which should be prohibited. Article 19 of the CRC provides that state parties "shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child," and this definition should be incorporated directly into the Child Law.
Children in Emergency Situations
Articles 22, 38 and 39 of the CRC which deal with children in situations of emergency cover such issues as refugee children, humanitarian law and provisions for the physical and psychological recovery of children who are the victims of neglect, abuse or armed conflicts. In Burma, abuse of the provisions of international humanitarian law is routine, despite the government's accession to the Geneva Conventions. However, the Child Law makes no mention of the need to especially protect children in situations of armed conflict, be that internal or external, nor are there any provisions for the physical and psychological recovery of children affected by armed conflicts.
Many of the ethnic minorities in Burma have lived in a state of low-intensity conflict since 1948, and in these areas violence has become a way of life. Civilians are routinely abused by all sides to the conflict but most often and most frequently by the Burmese army. The forms of abuse which affect children most directly are porter service, whereby civilians are forced to carry arms and supplies for the army to front-line positions or while the army is on patrol; the forcible recruitment of child soldiers; and the forcible relocation of entire villages in areas where ethnic rebels are known to operate.
The Burmese army routinely uses civilians as unpaid porters to carry ammunition and food supplies to front-line positions or while on patrol in ethnic minority areas. Many children are extrajudicially or accidentally killed while working as porters, and all are subject to cruel, inhuman and degrading treatment. The taking of porters has become less common since fifteen ethnic groups have signed cease-fires, but it has by no means ended. Both the Kachin Independence Army (KIA) and the Karenni Nationalities Progressive Party (KNPP) have reported that the taking of porters continues in their areas, as the army steps up its military presence there. Indeed, this was cited as a major reason for the collapse of the KNPP's cease-fire agreement in June 1995. In areas where there are no cease-fires, especially the Karen state, the taking of porters continues unabated.
When civilians, often ethnic minority villagers, were taken as porters, it was often while they were in their fields, or on trips away from their homes. Their wives and mothers were never informed, and in many cases women interviewed by Human Rights Watch/Asia in refugee camps in Thailand and Bangladesh said they left Burma because they believed that their husbands or fathers had been killed while working as porters. Some had tried to get information about their relatives' whereabouts from the local military base, but only rarely were they given information. Porters who fail to return after being forcibly conscripted therefore become effectively "disappeared" victims.
Most frequently, men and boys are taken to work as porters, although women are also taken if their husbands run away as the army approaches the village. In one major offensive against the KNU from January to March 1993, scores of women and girls were taken to the front-line and kept there for the entire three months, where they werefrequently raped by the soldiers.32 Since then, however, we believe that there has been an attempt by military commanders to reduce the number of women abused in this way. In January 1995, for example, the porters interviewed by Human Rights Watch said that no women had been taken among 5,000 porters used at that time.
Boys as young as fourteen years old have been taken to work as porters, particularly during major military offensives. Routinely, though, young boys are forced to carry supplies for one day at a time, while the army is on patrol. Many boys have died as a result of the treatment they received while working as porters. In August 1991, Amnesty International reported the case of a sixteen-year-old boy from Hlaingbwe township who was taken to be a porter in November 1990. He was only with the army for four days, but died six days later from internal injuries caused by beatings from the soldiers. In the same report, two other fifteen-year-olds were also reported as having been taken as porters.33 In January 1995, Human Rights Watch/Asia interviewed fifty men and boys who had been taken to work as porters during the offensive against the KNU headquarters at Manerplaw, near the Thai border. One of them was fifteen years old. He had been taken with his father in a cinema hall in Mudon, Mon State. Soldiers had beaten the boy when he could not carry his load, and his father said that he was lucky to be alive.
As well as working as porters, civilians also have to guard militarily strategic roads and railways. Usually, women and girls are chosen for this work, and those with small children have no option but to take them along. For the children, this is can be very abusive. "Guard duty" lasts from twenty-four hours to ten days, and the women sit under trees along the road or at the edge of railway embankments in an attempt to keep out of the hot sun or to shelter from the monsoon rains. The women have to take whatever food and cooking utensils they can carry and are not given additional food by the army. In some cases the children fall ill, but there is no medical treatment for them and the women cannot leave their positions for fear of being shot. They are frequently checked by soldiers in vehicles throughout the day and night to ensure that they have not fallen asleep. Those who fall asleep or who leave their posts even briefly are beaten and verbally abused.
The use of civilians as porters for the army violates Common Article 3 of the Geneva Conventions, to which Burma acceded in 1992. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:
1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall be in all circumstances treated humanely..To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above mentioned persons:
a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
b) taking of hostages;
c) outrages upon personal dignity, in particular humiliating and degrading treatment...
The use of children as porters by the Burmese military also violates Article 38 of the Convention on the Rights of the Child, by which
States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.
(4) In accordance with their obligations to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by armed conflict.
The Convention on the Rights of the Child states in Article 38 (2) that "States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities" and (3) " States Parties shall refrain from recruiting any person who had not attained the age of fifteen years into their armed forces." There is no similar prohibition in the Child Law, but Burma's armed forces regulations prohibit the recruitment of boys under the age of sixteen.
Nevertheless, all sides to the Burmese conflict employ children to fight their wars. The Shan Mong Tai Army and the United Wa State Army are believed to have the largest numbers of child soldiers, with each family being required to give a son to the cause. The Karen National Union, Karenni Nationalities People's Progressive Army and the New Mon State Party also recruit children as young as twelve.
In the case of the Burmese government, there are no statistical or other data about the recruitment of children. However, since 1988 the size of the armed forces has doubled, from 180,000 to around 400,000, and anecdotal evidence, supported by the testimony of refugees and some soldiers themselves, suggests that in part this increase has been facilitated by the recruitment of boys aged thirteen to fifteen years old. Often this recruitment is forced, with whole villages or sections of towns being ordered to "give" a number of boys to the army or face heavy fines. In other cases the coercion is less explicit but just as compelling. In ethnic minority areas, for example, the families of soldiers are exempt from arbitrary taxation or forced relocations. Refugees interviewed by Human Rights Watch/Asia in Thailand report that there are often fourteen- and fifteen-year-old soldiers in the brigades which take them to work as porters. In every case, the former porters note that the young soldiers were especially brutal in their treatment of civilian porters.
Testimony from villagers who have escaped to the Thai border reveals that in many areas of the Karen State villages are required to "donate" one boy from each ward to army service. One former soldier interviewed by Human Rights Watch/Asia in September 1995 said that he was fifteen years old when he was recruited into the army. The army had ordered the council chairman to find ten "volunteers" from his quarter of the town. At the military training school in Meiktilla in 1989 there were 500 other recruits, none of them older than himself. He described the brutal and brutalizing treatment he and all the recruits experienced in this training camp, which included beatings, sleep deprivation and starvation. He also said that Christian recruits were not permitted to worship or pray, and he did not know of any Muslims in the army.
In September 1995, Human Rights Watch/Asia interviewed several soldiers in Burma. In Loikaw, Karenni State, we talked to three soldiers who all said they were sixteen years old. They all came from the same village and had joined the army together three years before when they were just thirteen. They had seen front-line action after just one year of training -when they were still only fourteen years old. They said that two others who had joined with them had been killed in the fighting against the Mong Tai Army in June 1994. In the same town, we met a ten-year-old boy in a green uniform who claimed to be a soldier. He said that he had run away from home at age seven and had joined the army. He said he received 350 Kyats per month (less than $3.50), out of which he had to pay for his clothes and uniforms, but food and board were free. He had never seen front-line action but was looking forward to doing so within twelve months. The following morning, not quite believing his story, we went to the army parade ground. There he was seen at the gates of the compound, standing in uniform with his "brothers." In March 1996, we also spoke to a group of young soldiers in Sittwe, Arakan State who were waiting at a jetty. The twenty boys were all aged fifteen or less, and half of them had already taken part in active service against Muslim rebels in northern Arakan.
As the army continues to expand, and it is reported that the SLORC's target is for 500,000 soldiers, the forced recruitment of children is set to continue.34 The recruitment of children under the age of fifteen violates Article 38 of the Convention on the Rights of the Child, and the recruitment of children under the age of sixteen also violates Burma's national laws.
Forced relocations in ethnic minority areas is a military strategy which has been employed by the Burmese army for decades, part of a "four cuts" policy designed to cut off food, funds, information and recruits from the ethnic rebels. During late 1995 and throughout 1996 this policy has escalated in Burma's Shan, Karenni and Karen States to affect an estimated 200,000 people.
In October 1996, Human Rights Watch/Asia interviewed scores of refugees in Thailand from the Shan and Karenni states who had escaped from relocation sites. The bulk of the relocations took place between March and May 1996, although after the end of the rainy season in September, the relocations had begun again. In almost every case, the refugees reported that soldiers had entered their village and told them they had between three and six days to evacuate their homes and move to designated relocation sites. One Karenni women interviewed by Human Rights Watch/Asia said she had lived in the Shadaw relocation site for nearly two months before fleeing at night. She described conditions in Shadaw as appalling. No provision had been made for the newly displaced, and they had to find what shelter they could in schools and churches and underneath large houses in the town. Some had constructed temporary shelters, but they were given no financial assistance. The soldiers gave them a rice ration once a week, but it was usually only enough to last one day. Fresh water was scarce, especially after the rains started in June, and there was no sanitation provided, and they had to drink, wash and defecate in the same river. She and her two youngest children were taken by a sudden fever one month after they arrived. They paid to be treated at the one government clinic in the town, but both her children, aged three and six, died. Another woman, who was also moved to the Shadaw relocation site, said that her eighteen-month-old son died from a fever there, just ten days after the family arrived. In another case, a Shan woman told Human Rights Watch/Asia how she had fled from the Shan state while seven months pregnant after her husband had been killed by the Burmese army which suspected him of assisting the Shan rebels. She gave birth prematurely the day she arrived in Thailand.
Children in Conflict with the Law
With regard to administration of juvenile justice, the Child Law emphasizes institutionalization, appropriate punishment and retributive sanctions, as opposed to rehabilitation and reintegration that would enable the child to assume a more constructive role in the society. For example, Section 34 provides for institutionalization of a child whose character needs to be reformed until he attains eighteen years.
International laws as embodied in the Convention on the Rights of the Child, U.N. Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) 1985, and U.N. Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines) 1990 have moved away from this approach in handling juvenile offenders to lay emphasis on rehabilitation, reintegration, prevention and the recognition of human rights of children in conflict with the law.
The Beijing Rules are concerned primarily with development of a new juvenile justice system that focuses on alternatives to institutionalization. The basic principles of Beijing Rules are the principle of proportionality and the limited use of deprivation of liberty. According to Rule 17.1(b), restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum.
Similarly, the CRC, in Article 37 (b) provides that the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time. Further, the Riyadh Guidelines emphasize the development of social policies and practices that avoid criminalizing and penalizing behaviors. It urges governments to reform education programs, reorient community resources towards supporting children and families in order to provide care and protection, and ensure the physical and mental well-being of youth.
The Convention on the Rights of the Child recognizes the right of every child in conflict with the law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others, and also in a manner which takes into account the needs of persons of his or her age. In the legal climate existing in Burma today, it is unlikely that anyone, whether adult or child, will be treated in this manner.
Children in Situations of Exploitation
Section 24 of the Child Law gives every child the right to engage in work in accordance with law and of his own volition. However, it does not provide adequate protection for children who work. Existing Burmese laws allow for different minimum ages in different industries: the 1951 Factories Act and the 1951 Shops and Establishments Act prohibits the employment of any person under the age of thirteen; the 1951 Oilfield Labour and Welfare Act prohibits the employment of persons under the age of fifteen. These laws also regulate the number of hours per day children may work and the rest periods they are entitled to, and again these regulations differ from industry to industry. Neither these laws nor the Child Law include provisions for regular monitoring of children at work, and the report of the government to the Committee on the Rights of the Child excludes even the possibility that children work in potentially hazardous industries: "In the Union of Myanmar, children engage in work only in the economic enterprises of their families; as a consequence, the problem of child workers is quite rare." Equally, the possibility that parents may exploit their own children clearly is not considered, nor is the more frequent exploitation of children adopted into other families.
Moreover, the lack of political will to ensure that children are not exploited at work is clear in Chapter XVII of the Child Law, dealing with offenses and penalties. Here there is no punishment for persons engaging children who are not of age. Section 65(a) only provides punishment for persons employing a child to perform work which is "hazardous to the life of the child or which may cause disease to the child or which is harmful to the child's moral character." Even then, the sentence is very minimal and does not extend beyond six months or a fine of 1,000 Kyats ($10).
In practice, the government itself is the worst violator of its own laws, by directly and indirectly forcing thousands of children to work as porters or as day laborers for no pay.35 Since 1992, the military has forced at least two million people across the country to work without pay on the construction of roads, railways and bridges. In recent years, the use of forced labor has increased, as the government tries to improve its infrastructure in order to attract foreign investment and tourism. Hundreds, if not thousands, have died from beatings, exhaustion and a lack of medical care. Those forced to do such work include women, children and the aged. The use of forced labor in Burma has led to an investigation by the International Labor Organization under Article 37, and the European Commission announced on January 16, 1996 that it was also conducting an investigation into the practice. Childrenare affected by forced labor both directly, when they have to work alongside their parents, and indirectly when the work takes their parents away from them for long periods, leaving them vulnerable to abuse.
A twenty-eight-year-old man interviewed by Human Rights Watch/Asia in a refugee camp in Thailand in May 1994 described conditions for forced laborers at the Ye-Tavoy railway, one the most notorious construction site in Burma, and one which work continued in January 1996:
It was very difficult for families like mine which have only one man. When I was at the work site, the rest of my family found it difficult to work the farm and grow food. When a man returns, women are expected to replace him at the work site...I saw some elderly people working there and some children aged about twelve years. I also saw some pregnant women working there...One girl from Moe Gyi village who was four and half months pregnant died from malnutrition and diarrhea in mid-March 1994. She did not get any medical help. People were beaten by soldiers for trying to escape or for not working hard enough. Some people attempted to flee from the work site but were caught. They were beaten and tortured in front of everyone.36
In September 1995, a report in a British newspaper confirmed that twelve-year-old children were still working on this same railway project. The article included an interview with a Karen man who had worked on the railway who said "labourers encouraged children at the site to rest, but the soldiers beat them and ordered them to work. Some children were as young as twelve."37 In January 1995 a woman from Karen state interviewed by Human Rights Watch/Asia said, "Sometimes we didn't go because we were tired, and they [the soldiers] came and dragged us from the our house. My children were screaming and crying, but I just had to leave them there."38 This is a common problem, it seems, as increasing numbers of people are taken to work for the military. In many cases, women with babies who are still suckling have to take their babies with them, tied to their backs as they do heavy work such as breaking rocks or digging trenches.
Forced labor also takes place in Burma's towns and cities. In March 1996, Human Rights Watch/Asia witnessed school children and their teachers in Mrauk-Oo, Arakan state, being forced to clear the streets, literally picking off any small rocks on stones on earth roads, placing and painting white stones along the road sides and other menial tasks in preparation for a visit by Lt. Gen. Khin Nyunt. We witnessed one young boy, aged about twelve years old, who was kicked in the face by a soldier because he had temporarily stopped working. The day happened to be a day for national exams, which meant that because all schools in Mrauk-Oo were temporarily closed, no children were able to take their final year exams.
The use of unpaid civilians, including children, on labor projects is a violation of the International Labor Organization's 1930 Convention. Insofar as children are used on these projects, the government also violates Article 32 of the Convention on the Rights of the Child in which states are called upon to "recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development." In December 1996, the European Commission recommended after completing its investigationinto the practice of forced labor in Burma, that the European Union suspend the preferential trade tariffs which Burma receives as a developing country "until such time as forced labour practices are abolished."39
The Child Law does not sufficiently protect children from sexual abuse and exploitation. While it is aimed at punishing the abuser, rather than the child, it does not prohibit child prostitution and using children in pornographic films and gives only a light sentence of two years imprisonment and/or a fine of 10,000 Kyats (about $100) to persons "neglecting knowingly that a girl [leaving boys totally unprotected] under his guardianship, who has not attained the age of sixteen, is earning a living by prostitution," or "using the child in pornographic cinema, video, television or photography" (Section 66). Given the seriousness and the nature of the offense under consideration, more stringent measures should be taken.
The Child Law is also inadequate with regard to the trafficking of children into sexual or other slavery in foreign countries. In fact, there is no mention of any penalty for trafficking children, despite the fact that there are at least 50,000 Burmese girls and women working in Thailand as prostitutes at any one time. With the fear of HIV infection, brothels have increased the turnover of girls, and increasingly younger girls are sought by clients, who believe they are less likely to be infected. The reality is that for young girls, especially for virgins, the risk of HIV infection during sexual activity is greater than for older women, and many girls become infected immediately. As a result, sending or forcing girls and women into prostitution is to condemn many of them to death.
In 1994 Human Rights Watch published a report A Modern Form of Slavery, which documented the way in which girls and women are trafficked to Thailand to work in brothels where they live as virtual slaves, in often appalling conditions, with no means of escape. The thirty women and girls whom Human Rights Watch interviewed in detail for this report were aged between twelve and twenty-two, with the average age being around seventeen. They all came from poor families, most of them from farming communities, and only four had ever been to school and could read or write their own language. All the girls had left Burma to earn money for themselves or their families in Thailand, but only four of them knew beforehand that they would be involved in prostitution: all except one, who was forcibly kidnapped into Thailand, were told that they would get jobs in factories or as domestic workers.
Twenty-six of the thirty women and girls were taken from Burma into Thailand at Mae Sai, a town bordering Burma's Shan state. In 1992 border trade between the two countries through Mae Sai was legalized, and there are Burmese and Thai checkpoints on either side of a short wooden bridge over the Sai River which separates the two countries. In most cases, the women and girls were accompanied by a parent, brother, aunt or teacher, and they met a Thai agent in Mae Sai. The agent gave the companion money equivalent to between $40 and $800. From there the girls were taken to brothels in different parts of Thailand, most of them in Bangkok. Only once they were in the brothels did the girls realize that they were going to have to work as prostitutes and that they were effectively in debt bondage to the brothel owner, having to work until they paid off not only the price their parents or companions had been given, but also the agents' cut and interest.
The abuses which trafficked girls endure are extreme. They may have as many as fifty clients a day. In most cases the girls are prevented from leaving the brothels, and some are chained to their beds to prevent escape. Finally, when they do manage to escape, the girls are often too ashamed to return home. By that time, many are found to be HIV positive. Those that are "rescued" in police raids are detained by the Thai authorities on immigration charges and are held for months in detention centers where they face further abuse. From there they are deported to Burma, where again they face arrest under immigration laws for having left the country illegally.
There are three different articles in the Convention on the Rights of the Child which aim to protect children from this exploitation. Article 34 binds the state parties to the convention to "protect the child from all forms of sexual exploitation and sexual abuse"; in Article 35 "States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction, the sale of or traffic in children for any purpose in any form" and, insofar as the girls are held against their will in brothels, Article 37 also applies. Burma has taken some steps to work in coordination with Thai authorities to prevent the trafficking of women and children, and has also signed, although not yet ratified, the Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others. But much more needs to be done by the government to ensure that future generations of young girls and boys are not sold into sexual slavery, beginning with the prosecution of traffickers and an education program for the most vulnerable children and their parents.
32 See Amnesty International, "Myanmar: The Climate of Fear Continues" (London: Amnesty International, ASA 16/06/93, October 1993).
33 See Amnesty International, "Myanmar: Continued killings and ill-treatment of minority peoples" (London: Amnesty International, ASA 16/05/90, July 1991).
34 See Andrew Selth, Transforming the Tatmadaw: The Burmese Armed Forces since 1988 (Canberra: Canberra Papers on Strategy and Defense, No. 113, 1996).
35 The government and its local representatives may not always actually demand that children work, but the practice of ordering one or more members of each family to work for periods of up to two weeks at a time on any one project forces many families to send their children at times when the adults are needed to attend to the harvest or do other work to earn a living. The use of any form of threat constitutes force, and thus violates the Child Law which specifically states that any child may work of his own volition.
36 See Human Rights Watch/Asia, "The Mon: Persecuted in Burma and Forced Back from Thailand," A Human Rights Watch Report, vol. 6, no. 14 (c) (December 1994).
37 Damon Perry, "No Hope for Reform on Burma's Slave Railway" The Independent on Sunday (London), September 10, 1995.
38 See Human Rights Watch/Asia, "Burma: Entrenchment or Reform?"