Observación (CEACR) - Adopción: 2006, Publicación: 96ª reunión CIT (2007)

The Committee notes the Government’s first report. It also notes the communication of 7 September 2005 received from the International Confederation of Free Trade Unions (ICFTU) under Convention No. 29 and the Government’s reply thereto dated November 2005. Finally, it takes note of the detailed discussion which took place at the Conference Committee on the Application of Standards of the 93rd Session of the International Labour Conference in June 2005. Referring to the comments made by the Committee under the Forced Labour Convention, 1930 (No. 29), in so far as Article 3(a) of Convention No. 182 provides that the worst forms of child labour include “all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom or compulsory labour”, the Committee is of the view that the issue of the forced labour of children can be examined more specifically under this Convention. The Committee requests the Government to supply further information on the following points.

Article 3. 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 ICFTU’s 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 ICFTU 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 Government’s information that, during the period from March to May 2004, the CEAWC was able to retrieve, with the Government’s funding, more than 1,000 abductees who rejoined their families, including those in the areas controlled by the Sudan People’s Liberation Army (SPLA).

The Committee notes the Government’s information during the Conference Committee discussion of June 2005 according to which the CEAWC has dealt with 11,000 of the 14,000 cases of abduction and about 7,500 persons have been retrieved in 2004-05 compared with 3,500 from 1999 to 2004.

The Committee also notes the information contained in the ICFTU’s communication of 7 September 2005 that the signing of a comprehensive Peace Agreement in January 2005, the inauguration of a new Government on 9 July 2005 and the adoption of the interim Constitution provide an historic opportunity for the new Government of Sudan to resolve the problem of abductions, but it will not automatically lead to an end of abductions and the exaction of forced labour. With regard to the Government’s statement during the Conference Committee of 2005 that “the case was closed and there were no more abductions”, the ICFTU alleges that it has been informed about abductions leading to forced labour and repeated rape amounting to sexual slavery and forced prostitution. The Committee also takes note of the Government’s reply of November 2005, according to which 108 abducted children have been retrieved by the CEAWC.

The Committee notes 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 notes the Government’s information that section 32 of the Act on the Child of 2004 specifically prohibits “the employment of children in forced labour, sexual or pornographic exploitation, illegal trade, or armed conflict”. The Committee also notes that various provisions of the Penal Code prohibit forced labour (section 311), including abductions for that purpose (section 312).

The Committee notes the convergence of allegations and 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 practices of abduction and the exaction of forced labour from children. The Committee observes that, while there have been positive and tangible steps to combat the forced labour of children, which include the conclusion of the Comprehensive Peace Agreement of 2005 and the results achieved by the CEAWC, there is no verifiable evidence that the forced labour of children has been abolished. Therefore, although the national legislation appears to prohibit abductions and the exaction of forced labour, this remains an issue of concern in practice. In this regard, the Committee 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. The Committee expresses its deep concern over the situation of children under 18 years who continue to be abducted and subject to forced labour. It urges the Government to redouble its efforts to improve the situation and to take the necessary measures to eradicate abductions and the exaction of forced labour from children under 18 years. It also requests the Government to provide information on the effective and time-bound measures taken to remove children from situations of abduction and forced labour and to provide for their rehabilitation and social integration.

2. Forced recruitment of children for use in armed conflict. The Committee notes that, according to the Government’s Periodic Report to the Committee on the Rights of the Child of 6 December 2001 (CRC/C/65/Add.17, paragraph 39), 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. 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 Popular Defence Forces established as a paramilitary force by the Popular Defence Forces Act of 1989, are allowed to recruit 16 year olds.

The Committee notes that, according to the information available at the Office, the government armed forces, including the paramilitary Popular Defence Forces (PDF), the government-backed militias, the 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. In some cases, they were made to attack their own or neighbouring communities. The Committee also notes that in April 2003, the United Nations High Commissioner for Human Rights expressed concern at the continued recruitment and use of children in Sudan, in violation of international law. The Committee also notes that the Committee on the Rights of the Child, in its Concluding Observations of 9 October 2002 (CRC/C/15/Add.190, 2002, paragraphs 59 and 60) expressed deep concern that children are used as soldiers by the Government and opposition forces, and recommended the State party to end all recruitment and use of children as soldiers, in accordance with applicable international standards, complete demobilization and rehabilitate those children who are currently working as soldiers, and to comply with the Commission on Human Rights resolution 2001.

The Committee notes the Government’s information that section 9(24) of the Sixth Protocol of the Comprehensive Peace Agreement 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. If such a violation occurs, the joint military committee shall decide on the appropriate disciplinary measures to be taken which include: “declaring or announcing the parties which are involved in the conflict, exposing or denouncing the culprit, or deciding on imposing a harsh penalty if the culprit is involved in serious violations, recommending that the individual culprit or parties involved be referred to a tribunal be it civil, criminal or military, as the case may be”. The Committee also notes the Government’s information that a Committee was set up after the Peace Agreement which is specialized in disarmament, demobilization and reintegration. It formulated a draft policy framework for the demobilization and reintegration of children linked to the armed forces groups.

The Committee notes the adoption of the Comprehensive Peace Agreement in January 2005. However, it considers that the prohibition of forcibly recruiting children should not be confined to the scope of the said Agreement. Hence, the Committee observes that, according to the legislation in force, children under 18 years may be recruited as “reserve forces” as well as members of the Popular Defence Force (from 16 years of age). The Committee therefore requests the Government to take the necessary measures, as a matter of urgency, to prohibit in the national legislation the compulsory recruitment of children under 18 years including as “reserves”, in any military force, governmental or not, and to adopt appropriate penalties for contraventions of the prohibition. It also requests the Government to provide information on the time-bound measures taken to demobilize all child soldiers, including information on the number of children under 18 years who have been rehabilitated and reintegrated in their communities.

Article 7. Penalties. Forced labour. In it 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 notes the ICFTU’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 notes 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 the peace among the tribes concerned.

The Committee notes 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 also notes 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 notes that the Committee on the Rights of the Child, in its Concluding Observations of 9 October 2002 (CRC/C/15/Add.190, paragraph 62) recommended the State party to prosecute those persons engaged in the abduction, sale and purchase or illegal forced recruitment of children. The Committee considers 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 reminds the Government that, by virtue of Article 7, paragraph 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 requests the Government to take the necessary measures to ensure that those engaged in the abduction and exaction of forced labour from children under 18 years are prosecuted and that sufficiently effective and dissuasive penalties are imposed on them. It also requests the Government to provide information on the number of infringements reported, investigations, prosecutions, convictions and penal sanctions applied.

The Committee is also addressing a direct request to the Government concerning other points.