Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

Article 3 of the Convention. Worst forms of child labour. Clause (a). Slavery and practices similar to slavery. Abduction and the exaction of forced labour. In its previous comments under Convention No. 29, the Committee had noted the International Trade Union Confederation’s (ITUC) allegation that the report on the situation in Darfur issued by Amnesty International in July 2004 indicates cases of abduction of women and children by the Janjaweed militia, including some cases of sexual slavery. Abductions had continued in 2003 and 2004. The ITUC also indicated that, according to the Dinka Chiefs Committee (DCC) and the Committee for the Eradication of Abduction of Women and Children (CEAWC), there were some 14,000 people who had been abducted. The Committee had also noted the information contained in the ITUC’s communication of 7 September 2005 that the signing of a Comprehensive Peace Agreement (CPA) in January 2005, the inauguration of a new Government on 9 July 2005 and the adoption of the interim Constitution provided a historic opportunity for the new Government of Sudan to resolve the problem of abductions, but it would not automatically lead to an end of abductions and the exaction of forced labour.

The Committee had noted that article 30(1) of the Constitution of the Transitional Sudan Republic of 2005 prohibits slavery, the slave trade in all its forms and forced labour (unless sanctioned by the tribunal). It had also noted the Government’s information that section 32 of the Child Act of 2004 specifically prohibits “the employment of children in forced labour, sexual or pornographic exploitation, illegal trade, or armed conflict”. The Committee had further noted that various provisions of the Penal Code prohibit forced labour (section 311), including abductions for that purpose (section 312).

The Committee notes that, according to the Report of Activities of the CEAWC annexed to the Government’s communication of 27 April 2008, the CEAWC has successfully identified and resolved 11,237 of the 14,000 cases of abduction and reunified 3,398 abductees with their families. It notes that, according to the statement of the Government representative at the discussion under the Forced Labour Convention (No. 29) of the Committee on the Application of Standards of the June 2008 International Labour Conference, the number of cases of abduction identified was raised to 11,300. The Government representative recalled that the CEAWC had achieved a large measure of success in dealing with cases of abduction and affirmed that there have been no cases of forced labour in the country since the signature of the 2005 CPA. However, the Committee notes that both Worker and Employer members affirmed that there was evidence of the persistence of abductions of women and children and their forced labour in Sudan. In this regard, the Committee, while taking note of the measures taken by the Government, expressed the view that there was no verifiable evidence that forced labour was completely eradicated and expressed concern at the reports relating to the involuntary return of certain abductees, including cases of displaced and unaccompanied children.

The Committee further notes that, in its communication of 29 August 2008, the ITUC observed that, despite the Government’s claim that “there were no further cases of abduction and forced labour in the country”, information from various sources provide evidence that abductions have continued in Darfur, in the context of the current conflict there. In response to the ITUC’s allegations, the Government, in its communication of 2 November 2008, reiterated its commitment to completely eradicate the phenomenon of abductions and to provide continued support to the CEAWC. The Government also once again confirmed that abductions have stopped completely which, according to the Government, has also been confirmed by the DCC.

The Committee notes, however, that there is broad consensus among United Nations bodies, the representative organizations of workers and non-governmental organizations of the continuing existence and of the scope of the practices of abduction and the exaction of forced labour from children. Indeed, the Committee observes that the Secretary-General of the United Nations, in a Security Council report on children and armed conflict in the Sudan, of 10 February 2009, reported many instances of child abductions in southern Sudan and Darfur in 2007, as well as continuing concerns about incidents of abductions in 2008 (S/2009/84, paragraphs 35–37). Furthermore, the Committee notes that, in his Report to the Human Rights Council of June 2009, the Special Rapporteur on the situation of human rights in the Sudan highlights cases of abduction of children in March and April 2009 in Jonglei State, as well as between December 2008 and March 2009 in Western Equatoria and Central Equatoria States, in the context of continued attacks and fighting.

The Committee therefore once again observes that, while there have been positive and tangible steps to combat the forced labour of children, which include the conclusion of the results achieved by the CEAWC, there is no verifiable evidence that the forced labour of children has been eradicated. Therefore, although the national legislation appears to prohibit abductions and the exaction of forced labour, this remains an issue of concern in practice, in particular in the context of renewed violence and conflict. In this regard, the Committee once again reminds the Government that, by virtue of Article 3(a) of the Convention, forced labour is considered as one of the worst forms of child labour and that, by virtue of Article 1 of the Convention, member States are required to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. It strongly urges the Government to redouble its efforts to improve the situation and to take effective and time-bound measures to eradicate abductions and the exaction of forced labour from children under 18 years, as a matter of urgency. It also requests the Government to provide information on the measures taken to remove children from situations of abduction and forced labour and to provide for their rehabilitation and social integration, and to continue providing information on the results achieved.

Forced recruitment of children for use in armed conflict. In its previous comments, the Committee had noted that the government armed forces, including the paramilitary Popular Defence Forces (PDF), the government-backed militias, the Sudan People’s Liberation Army (SPLA) and other armed groups, including tribal groups not allied to government or armed opposition groups, have forcibly recruited child soldiers in the north and the south of Sudan. Recruitment took place predominantly in Western and Southern Upper Nile, Eastern Equatoria and the Nuba Mountains. An estimated 17,000 children remained in the government, SPLA and militia forces in 2004.

The Committee had noted that the National Service Law of 1992 stipulates that any Sudanese person having attained 18 years of age and who is not older than 33 years of age may be subject to conscription. However, section 10(4) of the People’s Armed Forces Act of 1986 states that all those who are capable of bearing arms are regarded as a reserve force and may be called upon to serve in the armed forces whenever the need arises. Subsection (5) of section 10 further states that, without prejudice to the provisions of subsection (4), the President of the Republic may require any person who is capable of bearing arms to undergo military training and thus be prepared as a member of a reserve force in accordance with the conditions specified by any law or decree in force. Furthermore, the government-run PDF established as a paramilitary force by the Popular Defence Forces Act of 1989, were allowed to recruit 16-year-olds.

The Committee had noted the Government’s information that section 9(24) of the Sixth Protocol of the CPA of 2005 requires “the demobilization of all child soldiers in the span of six months as from the date on which the Comprehensive Peace Agreement is signed”. Section 9(1)(10) of the Protocol considers the conscription of children a violation of the provisions of the Agreement. The Committee had also noted the Government’s information that a Committee was set up after the CPA which is specialized in disarmament, demobilization and reintegration. However, the Committee had considered that the prohibition of forcibly recruiting children should not be confined to the scope of the said CPA. Hence, the Committee had observed that, according to the legislation in force, children under 18 years may be recruited as “reserve forces” as well as members of the PDF (from 16 years of age). The Committee had accordingly requested the Government to take the necessary measures to prohibit in the national legislation the compulsory recruitment of children under 18 years including as “reserves”, in any military force and to adopt appropriate penalties for contraventions of the prohibition.

The Committee notes that, according to the mission report of the Special Representative of the Secretary-General for Children and Armed Conflict of 24 January to 2 February 2007, the Government of Sudan was finalizing the Sudan Armed Forces Bill that fixes the age of recruitment at 18 years and criminalizes the recruitment of anyone under 18. The Committee notes with interest that the Sudan Armed Forces Act was adopted in December 2007. The Committee further notes with interest that the Child Act of Southern Sudan was adopted in 2008. Section 31 of this Child Act establishes a minimum age of 18 years for conscription or voluntary recruitment into armed forces or groups. Section 32 provides that any person involved in the recruitment of a child into the armed forces is liable to be sentenced to imprisonment for a term not exceeding ten years or to a fine, or both.

While taking note of these advances, the Committee nevertheless observes that the Secretary-General of the United Nations, in his Security Council report on children and armed conflict in the Sudan of 10 February 2009, indicates that United Nations field monitors reported the recruitment and use of 101 children by the SPLA and that the recruitment and use of 67 children has been reported in six separate incidents in the Abyei area. On 18–19 June 2008, the United Nations reported the presence of 55 uniformed children aged 14 to 16 years among SAF soldiers who had presented themselves for registration in the Joint Inspection Unit. Furthermore, the Secretary-General indicates that United Nations field monitors reported the recruitment and use of 487 children by various armed forces and groups operating in all three Darfur states, most of which have been used as combatants, and that it is known that many cases remain unreported. Moreover, over 14 Sudanese and foreign armed forces and groups are reportedly responsible for recruiting and using children in Darfur. In February 2008 alone, at least 89 children were recruited by various armed groups: 10 in southern Darfur, 30 in northern Darfur, and 49 in western Darfur. Some of the children recruited were as young as 12 years of age. The Secretary-General further reports that Government forces are also responsible for recruiting children in Darfur. For example, reports indicate that the Central Reserve Police recruited 49 children and the SAF recruited 45 children between 1 August 2007 and 30 December 2008 (S/2009/84, 10 February 2009, paragraphs 9–17).

The Committee notes that, despite the adoption of the Sudan Armed Forces Act in 2007 and the Child Act of Southern Sudan in 2008, children are still being recruited and forced to join illegal armed groups or the national armed forces in practice. It expresses its profound concern with regard to the persistence of this practice, especially as it leads to other violations of the rights of children, in the form of abductions, murders and sexual violence. The Committee refers to the Secretary-General’s call upon the Government of National Unity and the Government of Southern Sudan to live up to the commitments they have made to end the recruitment and use of children in their forces in accordance with their obligations under international law as well as national legislation (S/2009/84, 10 February 2009, paragraph 68). The Committee therefore urges the Government to intensify its efforts to improve the situation and to adopt, as a matter of urgency, immediate and effective measures to put a stop in practice to the forced recruitment of children under 18 years of age by armed groups and the armed forces. It urges the Government to take the necessary measures to ensure that persons who forcibly recruit children under 18 years for use in armed conflict are prosecuted and that sufficiently effective and dissuasive penalties are imposed in practice. Finally, the Committee requests the Government to send a copy of the Sudan Armed Forces Act.

Article 7, paragraph 1. Penalties. Forced labour. In its previous comments under Convention No. 29, the Committee had noted that the CEAWC was of the opinion that legal action was the best measure to eradicate abductions, while the tribes, including the DCC, had requested the CEAWC not to resort to legal action unless the amicable efforts of the tribes had failed.

The Committee had noted the ITUC’s allegation that the impunity that those responsible for abductions and the exaction of forced labour have
enjoyed – illustrated by the absence of any prosecutions for abductions in the last 16 years – has been responsible for the continuation of this practice throughout the civil war and more recently in Darfur. The Committee noted the Government’s reply of November 2005 according to which the main reasons for which all the tribes concerned, including the DCC, have requested the CEAWC not to resort to legal action unless the amicable efforts of the tribes are not successful, are that: legal action is very long and expensive; it may threaten the life of young abductees; and it will not build peace among the tribes concerned.

The Committee had noted that the Penal Code of 2003 contains various provisions which provide for sufficiently effective and dissuasive penalties of imprisonment and fines for anyone who commits the offence of forced labour. It had also noted the Government’s information that section 67(d) of the Child Act of 2004 states that any person who violates section 32 prohibiting forced labour shall be punished by imprisonment for a maximum period of 15 years and by a fine decided upon by the tribunal. The Committee had considered that the lack of enforcement of the penal provisions prohibiting the forced labour of children under 18 years, while sometimes ensuring that victims are effectively retrieved, has the effect of ensuring impunity for perpetrators instead of punishing them.

The Committee notes that the Government representative at the Conference Committee on the Application of Standards indicated that, with a view to giving effect to legal procedures and to bringing those procedures closer to the victims, four prosecutors had been appointed covering all the regions addressed by the CEAWC. However, not a single victim made use of these legal procedures and so, as of January 2008, the CEAWC recommenced its work to continue the methods that had been previously applied. The Worker members nevertheless pointed out that international provisions regarding sanctions should prevail to prevent perpetrators from enjoying impunity. The Worker members noted that the lack of prosecutions had undoubtedly contributed to the persistence of abductions during the civil war and until today in Darfur. The Conference Committee therefore considered it necessary to pursue effective and urgent action to put an end to impunity by punishing perpetrators, particularly those unwilling to cooperate, independently from the CEAWC’s activities. In this regard, in her Report to the Human Rights Council of June 2009, the Special Rapporteur on the situation of human rights in the Sudan expressed ongoing and serious concern at the level of impunity in all areas of Sudan (A/HRC/11/14, paragraph 91).

The Committee once again reminds the Government that, by virtue of Article 7(1) of the Convention, the Government shall take the necessary measures to ensure the effective implementation and enforcement of the provisions giving effect to the Convention, including through the provision and application of penal sanctions. The Committee once again requests the Government to take the necessary measures to ensure the protection of children under 18 years of age against abductions for the exaction of forced labour in practice, including by ensuring that thorough investigations and robust prosecutions of offenders are carried out, and that effective and sufficiently dissuasive sanctions are imposed on those engaged in the abduction and exaction of forced labour from children under 18 years. It also requests the Government to provide information on the number of infringements reported, investigations, prosecutions, convictions and penal sanctions applied.

Article 7, paragraph 2. Effective and time-bound measures. Clause (b). Removing children from the worst forms of child labour and providing for their rehabilitation and social integration. Child soldiers. The Committee notes that the Secretary-General of the United Nations, in his Security Council report on children and armed conflict in the Sudan of 10 February 2009, indicated that during the reporting period (1 August 2007 to 30 December 2008), almost 600 children formerly associated with armed forces and groups under the CPA, as well as 12,000 other vulnerable children, were supported through reintegration programmes across the Sudan. It notes that the National Council for Disarmament, Demobilization and Reintegration (DDR) Coordination and the Northern Sudan DDR Commission were established by the CPA in February 2006, while a DDR Commission for Southern Sudan was created in May 2006. The Northern and Southern Sudan DDR Commissions have jointly developed a national reintegration strategy for children associated with armed forces and groups, which will provide a common approach for child reintegration throughout the country. In this regard, the Southern Sudan DDR Commission has reintegrated 150 children and registered an additional 50, and the Northern Sudan DDR Commission has recently started the reintegration of some 300 children. The Secretary-General also indicates that a DDR process for children in Darfur was launched in June 2008 as a result of a workshop that brought together representatives of the six groups that are signatories to the Darfur Peace Agreement, all of whom have committed themselves to releasing children as a priority. However, although the CPA signed in January 2005 called for the immediate and unconditional release of all children from various fighting forces and groups within six months, the Secretary-General points out that children continue to be recruited and used by all parties to the conflict (S/2009/84, paragraphs 56–60). While noting the progress achieved in the country, the Committee observes that the current situation in Sudan remains a cause for serious concern. The Committee strongly encourages the Government to continue its efforts and take effective and time-bound measures to remove children from armed conflict and ensure their rehabilitation and social integration. In this regard, it requests the Government to supply information on the number of children under 18 years of age who have been rehabilitated and reintegrated into their communities as a result of the Northern and Southern Sudan DDR Commissions.

Furthermore, in accordance with the recommendation of the Conference Committee on the Application of Standards, the Committee invites the Government to avail itself of ILO technical assistance.

The Committee is raising other points in a request addressed directly to the Government.