Category: Uncategorized
Introduction
On January 20, 2025, President Trump took office in the White House and began his second administration. One of the “hot” issues is the TikTok ban[1]. In the last administration, President Trump saw this social media having 170 million American users as hostile, but now it is assumed that he changed “his mind.” Now, TikTok and other popular Chinese apps are centered in a new Cold War whose battle field is speech platforms.[2]
This article briefly reviews the history of the TikTok ban and the recent impactful case of TikTok Inc. v. Garland—the First Amendment right of SNS users v. the Government’s national security interest—, analyzing the past Supreme Court’s decisions that balanced these competing interests. Then, examine the international context that will come next.
I. Brief History of TikTok ban
(1) Former Trump Administration
On August 6, 2020, Trump signed the executive order to ban transactions with ByteDance, owner of TikTok in the U.S. This would be effective in 45 days, on Sept. 20, 2020.[3] What led Trump to ban TikTok might be his desire to be reelected: his reelection campaign is driven by China-bashing to make China a scapegoat for complicated issues from COVID-19 to American job loss.[4]
In the order, Trump said Chinese apps threatened “the national security, foreign policy, and economy of the United States,” citing the potential for the Chinese Communist Party to access “Americans’ personal and proprietary information.”[5]
To avoid the forced sale of the US part of the business, ByteDance approached Microsoft as a possible partner and later chose Oracle as a “trusted technology provider.”[6] Under the corporation with Oracle, ByteDance would be able to keep TikTok’s algorithm and store user data in the U.S., but that didn’t happen.[7]
(2) Biden Administration
Biden’s executive order revoked Trump’s two orders and asked the Secretary of Commerce to evaluate the risks caused by China-based apps and address “any unacceptable or undue risks consistent with overall national security”.[8] Like Trump’s order, Biden’s order also acknowledged that these Chinese apps can access American users’ information.[9]
On March 23, 2023, the Congress hearing inviting Shou Zi Chew, the CEO of TikTok, was held in the Committee on Energy and Commerce. In her opening Statement, Chair Cathy McMorris Rodgers (R-WA) criticized TikTok as “TikTok surveils us all and the Chinese Communist Party (CCP) is able to use this [collected data of American users] as a tool to manipulate America” and “TikTok doesn’t share America’s value.” She called for the ban on TikTok and preparation for “the next technological tool or weapon China will use for its own strategic gain.”[10] In its hearing memo, the strong connection between TikTok and CCP is addressed; though TikTok executives denied that it shares U.S. user data with the CCP, CCP actually passed laws that require all Chinese tech companies, including ByteDance, to allow CCP to access user data.[11] ByteDance also stated that any sale would need approval from Chinese Authorities.[12] Note that the Chinese government is a “golden” shareholder of ByteDance and has veto powers in the company.[13]
In April 2024, Biden signed the bill of the Protecting Americans from Foreign Adversary Controlled Applications Act, the so-called “TikTok ban,” that gave ByteDance 270 days, until January 19, 2025, to sell TikTok; otherwise, TikTok would be kicked out from the U.S. app stores, prohibited from any internet support, and restricted new app downloads.[14] The Act prohibits any entity from providing services to “distribute, maintain, or update” a “foreign adversary controlled application” in the United States and also prohibits any connection between ByteDance and TikTok after the sale.
The unique feature of TikTok is its recommendation algorithm:[15] unlike other SNS, TikTok’s algorithm recommends videos based on a user’s past engagement and personalized data, which allows TikTok to pull content not only from a user’s network but from the global pool.[16] U.S. officials warn TikTok’s algorithm is vulnerable to “manipulation by Chinese authorities, who can use it to shape content for propaganda purposes.”[17] While the bill asks TikTok to be separated from ByteDance, this separation is challenging because its algorithm is owned by ByteDance and maintained by Chinese engineers.[18] In response to the Act, TikTok began legal action against the Act, stating the law that censors freedom of speech and would devastate 170 million U.S. users is “unconstitutional.”[19]
However, the result of November changed the pathway to the TikTok ban. Biden left the implementation of the law to the next President, Trump.[20] In Congress, “saving TikTok” has become a partisan matter: Senate Democratic Leader Chuck Schumer revealed he persuaded Biden to extend the deadline to ban TikTok to ensure more time for AmericanTikTok users who live on their content revenues.[21]
(3) Present Trump Administration
The fact that the CEO of TikTok and other social networking heroes were at Trump’s inauguration was not just a coincidence.[22] TikTok was banned on January 19, 2025, and the next day, it seemed as if it came back to life. President Trump issued an executive order on January 20 to pause the ban required by the Act for 75 days.[23] In his “new” order—completely “shifted” from that in his former administration—Trump would “pursue a resolution that protects national security while saving a platform used by 170 million Americans” in the name of the President’s constitutional responsibility for the national security.[24]
What brought such a dramatic shift to Trump? One reason might be that winning the election has reaffirmed his belief in the usefulness of SNS as TikTok enabled his team to connect with young voters, which contributed to his victory.[25] The second reason would be that the SNS giants enthusiastically donated to Trump: Jeff Yass, one of the world’s 100 richest men and a TikTok investor hedged funds to Trump.[26] Elon Musk, X owner, has spent $200 for Trump’s campaign and got the privilege to lead a new “Department of Government Efficiency.”[27] Meta CEO Mark Zuckerberg updated his platforms’ policies to loose rules against hate speech to be more “Trump-friendly.”[28]
President’s “personal” motivation to pause the TikTok ban confused the tech industry; to follow the Act that passed Congress or to ignore it? Amazon Web Service, Apple, and Google followed the law by stopping providing its direct service to TikTok and deleting TikTok on their app stores while Oracle, Akamai, and Fastly continued their services to TikTok.[29] This division is likely to come from two different types of fear: the risk of being theoretically liable for up to $850 billion or the risk of being resistant to the President’s will.[30] The situation surrounding the ban on TikTok is highly fluctuating.
II. TikTok Inc. v. Garland
(1) Trump’s Amicus Brief
Before the Supreme Court’s decision, Trump filed an amicus brief to the Court in December 2024. In his brief, though Trump took no position on the merits of the dispute, he asked the Court to postpone the Act’s effective date so that his next Administration can resolve a nationwide shutdown of TikTok and national security concerns and the Court can obviate the need to decide “extremely difficult questions on the current, highly expedited schedule.”[31] Trump completely changed his attitude toward TikTok from when his executive order was issued, stating he evaluated “TikTok’s importance as a unique medium for freedom of expression” and called TikTok a constitutional forum where “the First Amendment’s ‘constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.’”[32] Trump posed a concern that the First Amendment right of 170 million Americans on TikTok would suffer because the ban, based largely on the government’s concerns about disfavored speech on the platform, might be a “dangerous global precedent by exercising the extraordinary power to shut down” an SNS.[33] He warned that the Court “should be deeply concerned about setting a precedent that could create a slippery slope toward global government censorship of social-media speech” with the most extreme care.[34]
(2) Case Brief
Petitioners are ByteDance Ltd. and TikTok Inc. with two sets of TikTok users, arguing the Act’s TikTok-specific prohibitions and the divestiture requirement impose a disproportionate burden on such as content moderation, content generation, access to a distinct medium for expression, thus violating the First Amendment.
While the Court admitted that the Act is different from the normal regulations of non-expressive activity in many ways—especially, the Act focuses on a foreign adversary government—the Court assumed without deciding that the Act was subject to First Amendment scrutiny.[35] Then, the Court concluded that the Act is content neutral because it neither “target particular speech based upon its content,” nor imposes “a ‘restriction, penalty, or burden’ by reason of content on TikTok[36]. The Court took the Government’s justification that the aim of the Act is “preventing China from collecting vast amounts of sensitive data” into account, concluding it is content neutral as the justification does not relate to the content.[37]
Roughly speaking, content-neutral regulations are examined by the intermediate scrutiny standard.[38] It applies to this case too; the Court clearly concluded that the Act does not trigger strict scrutiny. The Court admitted that if a regulation discriminates some speakers from others among media, and if the legislator’s speaker preference reflects a content preference, it presents “serious First Amendment concerns.”[39] However, the Court concluded that the purpose of the Act doesn’t include “a subtle means of exercising a content preference” because of its special characteristics focusing on the foreign adversary’s ability, which justifies different treatment on TikTok, so did deny the Court petitioner’s request for strict scrutiny and state no more than intermediate scrutiny is enough.[40]
Then, the Court evaluated the Act’s prohibitions and divestiture requirement to prevent the Chinese government’s capturing the American’s personal data through ByteDance “qualifies as an important Government interest under intermediate scrutiny” because the Act does not burden “substantially more speech than necessary to further that interest.”[41] The Court focused on the ban addressing delicate “national security and foreign policy concerns” and thus afforded “the Government’s ‘informed judgment’ substantial respect. A regulation can satisfy the intermediate scrutiny standard “‘so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation’ and does not ‘burden substantially more speech than is necessary’ to further that interest,” and the Act’s provisions clearly serve to the Government’s interests “in a direct and effective way” so satisfies the intermediate scrutiny.[42]
(3) Analysis: How has the Supreme Court assessed national security interests so far?
The Court’s decision to hold that the Act does not violate its users’ First Amendment rights surprised many people. First Amendment experts expected that the Act could be shot down by the courts given longstanding Supreme Court precedent protecting First Amendment rights; they assumed the Act would infringe on the right.[43] The battle pursuing the appropriate balance between the First Amendment rights and the national security interests has continued for decades. Why was the TikTok ban considered constitutional? Was it because of control by “foreign adversary” or because of its algorithm? I examined whether the TikTok case was in alignment with the stream of precedent that balanced national security interests and the First Amendment.
A. Members of City Council v. Taxpayers for Vincent
A group of election supporters and a sign corporation challenged an ordinance by Los Angeles prohibiting signs on public property, claiming it violated their First Amendment rights.[44] The Ninth Circuit deemed the ordinance unconstitutional on its face because the ordinance was overly broad and not the least restrictive way to achieve the city’s esthetic interest.[45] Nevertheless, the Supreme Court determined that the case was not suitable for a facial overbreadth challenge, as the ordinance did not affect third parties’ free speech in a manner different from that of the appellees.[46] The court concluded that the city’s objective of reducing visual clutter was a sufficient governmental interest that justified the content-neutral ban, and the restriction on speech was found to be narrowly tailored.[47]
However, Justice Brennan, Justice Marshall, and Justice Blackmun stated in their dissent that national security interests listed along with public health and public safety as “objective grounds” compared to aesthetic state interest that “creates difficulties for a reviewing court” in judging if government regulation does not trespass upon protections secured by the First Amendment” because judging whether the disputed matter is aesthetic or not is unavoidably subjective.[48] Such subjectivity “makes it all too easy for the government to fashion its justification for a law in a manner that impairs the ability of a reviewing court.”[49] The Justices warned that the Court “must avoid unquestioned acceptance of the City’s bare declaration of an aesthetic objective” so that the Court would not “fail in our duty to prevent unlawful trespasses upon First Amendment protections.”[50] This is one example of a case where opinions were divided over which government interests are objective and which are subjective concerning content-neutral regulations.
B. Brown v. Glines
An Air Force captain was removed from active duty after distributing petitions without approval from the base commander, violating Air Force Reg. 35-15 (3)(a)(1).[51] The captain argued the regulation violated the First Amendment and 10 U.S.C.S. § 1034 which protects servicemembers’ rights to communicate with Congress without official channels.[52] Though the district court and the court of appeals supported the captain, the Supreme Court reversed, holding that military discipline justified reasonable speech restrictions.[53] The regulation was deemed valid as it only limited speech necessary to maintain military effectiveness, not more than was reasonably necessary to protect the substantial government interest in securing military effectiveness thus violating neither the First Amendment nor § 103.[54]
The Supreme Court denied the captain’s complaint, holding that the Air Force Regulations do not impose restrictions on speech beyond those reasonably necessary to protect a substantial government interest.[55] The Air Force Regulations implement the Department of Defense Directive, which protects “right of expression . . . to the maximum extent possible, consistent with good order and discipline and the national security.”[56] The Air Force Regulations also prohibit commanders from interfering with the circulation of any materials other than those posing “a clear danger to military loyalty, discipline, or morale;” they specifically cannot interfere with material critical of the government or its policies.[57] The Regulations also permit the “[d]istribution of publications and other materials through the United States mail.”[58] The Court held that such regulations limiting speech do not violate the First Amendment.[59]
However, as in Members of City Council v. Taxpayers for Vincent, the Court’s position on government regulation in the interest of national security was once again split. Justice Brennan dissented, warning that the concept of national security or military necessity is so “seductively broad and has a dangerous plasticity” as to always seem high priority.[60] Accordingly, “[t]here is always a temptation” for the government to use this justification to encroach upon First Amendment rights, and the Court should examine the military-security argument with “a healthy skepticism.”[61]
C. Holder v. Humanitarian Law Project
In this case, the Court confirmed that it had the authority to review the Government’s national security determinations, but also acknowledged that substantial deference should be given to the Government’s judgment. The plaintiffs—two U.S. citizens and six organizations that wished to provide legal, non-violent support to the Partiya Karkeran Kurdistan (PKK) and the Liberation Tigers of Tamil Eelam (LTTE)—challenged 18 U.S.C. § 2339B, which prohibited providing “training” and “expert advice or assistance.”[62] PKK and LTTE were designated as “foreign terrorist organizations” by the Secretary of State.[63] The plaintiffs argued that § 2339B was impermissibly vague, thereby violating the Fifth Amendment and infringing their First Amendment rights.[64] The Court concluded that § 2339B was neither impermissibly vague nor in violation of the First Amendment because the law did not prohibit independent advocacy.[65] The Court deferred to the judgment of Congress and the Executive Branch that even seemingly innocent support for a foreign terrorist organization could further its terrorist activities.[66]
In this case, the Court was confident in its ability to review the Government’s asserted authority and expertise in matters of national security, stating that the Government’s interests “do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals.”[67] At the same time, the Court acknowledged its limited competence in collecting evidence and drawing factual inferences in the national security context. The Court’s decision must often rest on the Government’s informed judgment rather than concrete evidence; thus, “respect for the Government’s conclusions is appropriate.”[68]
Especially when addressing a “preventive measure” aimed at preventing foreign terrorist attacks in the context of international affairs, the Court deferred to the Government’s empirical conclusions because “[t]he Government … is not required to conclusively link all the pieces in the puzzle” before the Court gives weight to those conclusions.[69] The Court gave substantial deference to the Government’s empirical conclusions because sensitive matters of national security and foreign affairs weigh heavily on Congress and the Executive in determining which activities pose serious risks to U.S. foreign policy.[70] The Court found that the number of designated organizations was limited by the Executive Branch’s designation process, and Congress “has also displayed a careful balancing” of competing interests between First Amendment rights and national security interests by clarifying the disputed terms and developing limited exceptions.[71] Citing the Framers’ words, the Court held that “Congress has pursued that objective consistent with the limitations of the First and Fifth Amendments” by regulating the particular forms of support provided to foreign terrorist organizations. The Court relied on this evidence to support the Government’s argument.[72]
D. Analysis
There has been a split in opinions about the ability of the Court to review the Government’s interest in national security. Though national security is relatively objective rather than something as vague as aesthetic sensibilities, the Court itself acknowledged that it does not have perfect competence to review national security interests. Nevertheless, in the above cases, the Court recognized the Government’s interests. The court’s judgment in TikTok v. Garland presumably aligns with precedent because (1) TikTok’s “algorithms” were engineered in the “foreign adversary” (it is completely impossible for the Court to closely examine the actual mechanism of its algorithms) and (2) the law’s objective is a “preventative measure” against control from such an adversary Government. In addition, while not explicitly stated, the fact that the expressions on TikTok can also be made on other non-China-based platforms is likely to contribute to thedecision for this case.
III. What will happen in the world: Speech-Platform Cold War surrounding Chinese Apps
What Trump will do is likely to invite a chain reaction from like-minded countries. In 2020, India embarked on the first TikTok ban in the world, and Trump highlighted India’s ban in his Executive Order. The present digital world is so tightly connected that if highly confidential military information is leaked from a U.S. ally country, this may badly affect the U.S. and other allies.
However, the chain of such “U.S.-way” will polarize the world’s digital expressions into “on U.S.-made platform or not,” and may fuel the Tech Cold War. There is also an inherent risk that overly drastic measures to address national security concerns may cause an ironic result. Urgency may legally allow democratic governments to take too strong of measures, such as allowing the governments to access the database to “ensure” national security. I am introducing an interesting example in India.
India
Ahead of the U.S., India banned TikTok and 58 other Chinese apps in 2020 even though India is TikTok’s biggest foreign market with an estimated 120 million users.[73] Trump cited India’s ban in his executive order.[74] Territorial disputes with China, in which twenty Indian and four Chinese soldiers were killed, led India to ban Chinese apps as a countermeasure.[75] The Indian government warned that these apps stole and transmitted users’ data in an unauthorized manner and cited privacy concerns and threats to India’s sovereignty and security.[76] Though TikTok content in India was unique in its hyperlocal aspect, since the ban, Indian content creators and users have moved on to other “U.S.” platforms.[77] After the ban, Indian alternative platforms such as MX Taka Tak and Moj were launched. Still they were soon replaced by the U.S. tech giant’s platforms, such as Instagram Reels and YouTube Shorts.[78] Though TikTok did not pursue legal action against the ban in India, Pahwa, a digital policy expert and founder of tech website MediaNama, pointed out that the situation surrounding freedom of speech in the U.S. and in India is very different in the sense that the U.S. is a bigger market for TikTok and the U.S. First Amendment is pretty strong.[79]
India’s cybersecurity law has become more like China’s. Section 69 of the IT Act allows the government to require data to be stored in India and to issue directions for interception, monitoring, or decryption of individuals in India for the security interest, which enables law enforcement to access and use data easily.[80] This causes ironic concerns in India that people might be arrested for merely posting information on the Internet. To secure India’s security against China, India’s new law has become, ironically, similar China’s.
Conclusion
It is difficult and meaningless to predict at this time what the Trump administration will do after the 75-day pause of the TikTok ban. Modern digital speech is now thriving on platforms including SNS. However, if those platforms are foreign-made “black boxes,” it will be challenging for First Amendment rights to override the government’s interests in national security in the courts. Given the recent dramatic advancements in artificial intelligence technology, the ability of courts to review the regulation of speech on digital black boxes is likely to become increasingly tenuous, and constitutional protection is likely to become weaker.
In addition, the major platforms today are bifurcated into U.S.-made or Chinese-made platforms, and the TikTok ban law has once again reminded us of the intensity of the information and technology cold war between these two giants. This divide is not limited to the U.S. and China alone but has spread to each side’s like-minded countries. The U.S. allies use U.S.-made platforms, even non-local ones, while China’s friends use China-made platforms. Which side a nation belongs to determines the platform on which this nation’s citizens develop their discourse. Now that online speech itself belongs to different worlds, will the day ever come when a second Malta Summit will be held?
[1] TikTok is operated in the U.S. by TikTok Inc., an American company headquartered in California. TikTok Inc.’s parent company is ByteDance Ltd., operated in China.
[2] See Recent Case: U.S. WeChat Users Alliance v. Trump, Harv. L. Rev. Blog
, Oct. 2020), https://harvardlawreview.org/blog/2020/10/recent-case-_u-s-wechat-users-alliance-v-trump_/ .
[3] See Chris Iorfida, Trump’s TikTok flip-flop: The U.S. president-elect’s social media evolution, CBC News (Jan 16, 2025, at 12:59 PM CST), https://www.cbc.ca/news/world/trump-tiktok-timeline-1.7432843.
[4] See supra note 2.
[5] Exec. Order No. 13944, 85 FR 49929 (2020), https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-addressing-threat-posed-tiktok/.
[6] See Microsoft says failed TikTok acquisition was ‘strangest thing’, BBC
(Sep 28, 2021), https://www.bbc.com/news/technology-58719674.
[7] Id.; See also H. Comm. on Energy & Com. , 118th Cong. 3, Full Committee Hearing Memo: TikTok Hearing, , = (March,20, 2023), available at https://d1dth6e84htgma.cloudfront.net/Memo_03_23_2023_Full_Committee_Tik_Tok_Hearing_55e129f043.pdf.
[8] See Donald Trump-era ban on TikTok dropped by Joe Biden, BBC (June 9, 2021), https://www.bbc.com/news/technology-57413227 [https://perma.cc/8NJ3-3VQD]; Exec. Order No. 14,034, 86 Fed. Reg. 31,423 (June 11, 2021).
[9] Id.
[10] Chair Rodgers to TikTok CEO: “Your Platform Should be Banned”, H. Comm. on Energy & Com. (Mar. 23, 2023), https://energycommerce.house.gov/posts/chair-rodgers-to-tik-tok-ceo-your-platform-should-be-banned [https://perma.cc/8UTU-966J].
[11] See Committee Majority Staff supra note 7, at 2.
[12] Id.
[13] See Sonal Gupta, TikTok Ban Looms in the US: Why India Banned it 5 Years Ago, What Happened Then, The Indian Express (Jan. 17, 2025 at 22:26 IST), https://indianexpress.com/article/explained/tiktok-ban-us-india-comparison-china-9784402/ [https://perma.cc/QM25-Y5YR].
[14] Brian Fung,Biden Just Signed a Potential TikTok Ban into Law. Here’s What Happens Next, CNN Business (April 24, 2024, at 11:23 EDT) https://www.cnn.com/2024/04/23/tech/congress-tiktok-ban-what-next/index.html [https://perma.cc/VV6T-8GCK]
[15] See Sapna Maheshwari & David McCabe, Congress Passed a Bill That Could Ban TikTok. Now Comes the Hard Part, N.Y. Times (April 23, 2024) https://www.nytimes.com/2024/04/23/technology/bytedance-tiktok-ban-bill.html?searchResultPosition=1 [https://perma.cc/KBV8-7DZB]; TikTok Inc. v. Garland, 604 U.S. 56, 65 (2025).
[16] H. Comm. on Energy & Com. , 118th Cong. 3, Full Committee Hearing Memo: TikTok Hearing,3 (March,20, 2023), available at https://d1dth6e84htgma.cloudfront.net/Memo_03_23_2023_Full_Committee_Tik_Tok_Hearing_55e129f043.pdf [https://perma.cc/BH33-9HCQ].
[17] See supra note 2.
[18] See supra note 15.
[19] See supra note 14.
[20] See Zeke Miller et al., Biden won’t enforce TikTok ban, official says, leaving fate of app to Trump, AP News (Jan 17, 2025) https://apnews.com/article/tiktok-ban-trump-executive-order-1e95d9836bf6f8c0c245ed1c3234d968 [https://perma.cc/E36Y-9R4C].
[21] Id.
[22] See Kurt Wagner, TikTok CEO joins Trump’s inauguration as app’s future remains in doubt, Financial Post (Jan 20, 2025) https://financialpost.com/news/tiktok-ceo-joins-trumps-inauguration.
[23] See Bobby Allyn, Trump signs executive order to pause TikTok ban, provide immunity to tech firms, NPR (Jan 20, 2025, at 20:22 ET) https://www.npr.org/2025/01/20/nx-s1-5268701/trump-executive-order-tiktok-ban [https://perma.cc/LH8R-M2VJ].
[24] See APPLICATION OF PROTECTING AMERICANS FROM FOREIGN ADVERSARY CONTROLLED APPLICATIONS ACT TO TIKTOK, White House (Jan 20, 2025) https://www.whitehouse.gov/presidential-actions/2025/01/application-of-protecting-americans-from-foreign-adversary-controlled-applications-act-to-tiktok/ [https://perma.cc/4BDG-BCC6].
[25] See supra note 20.
[26] See supra note 3.
[27] See supra note 23.
[28] Id.
[29] See Sapna Maheshwari et al., Tech’s TikTok Dilemma: Follow the Law or President Trump?, N.Y. Times (Jan. 25, 2025), https://www.nytimes.com/2025/01/24/technology/tiktok-ban-trump-amazon-apple-google.html [https://perma.cc/T47V-NT39].
[30] Id.
[31] See Brief of President Donald J. Trump as Amicus Curiae Supporting Neither Party at 4-5, TikTok Inc. v. Garland, 246 U.S. 656 (2024) (Nos. 24-656, 24-657).
[32] Id. at 2.
[33] Id. at 6.
[34] Id. at 16.
[35] TikTok Inc. v. Garland, 604 U.S. at 69.
[36] Id. at 1.
[37] Id. at 12-15.
[38] See Cornell Law School Legal Information Institute, intermediate scrutiny https://www.law.cornell.edu/wex/intermediate_scrutiny.
[39] TikTok Inc. v. Garland, 604 U.S. at 15.
[40] Id. at 15-16.
[41] Id. at 16.
[42] Id. at 19-22.
[43] See supra note 14.
[44] Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 792-93, (1984).
[45] Id. at 796.
[46] Id. at 801.
[47] Id. at 809.
[48] Id. at 821-22.
[49] Id. at 822.
[50] Id. at 823-24.
[51] Brown v. Glines, 444 U.S. 348, 349(1980)
[52] Id.at 349.
[53] Id.at 355.
[54] Id.at 355.
[55] Id.
[56] Id.
[57] Id.
[58] Id. (quoting Air Force Reg. 35–15(3)(a)(1) (1970)).
[59] Id.
[60] Brown v. Glines, 444 U.S. 348, 369, 100 S.Ct. 609, 614 (1980) (Brennan, J., dissenting).
[61] Id.
[62] Holder v. Humanitarian L. Project, 561 U.S. 1, 10, 14 (2010).
[63] Id., at 9.
[64] Id., at 14.
[65] Id., at 20, 24, 39.
[66] Id., at 29, 33, 36.
[67] Id., at 34.
[68] Id., at 34–35.
[69] Id. at 2728
[70] Id. at 2728
[71] Id. at 2728
[72] Id. at 2731
[73] See India bans TikTok, WeChat and dozens more Chinese apps, BBC (June 29, 2020), https://www.bbc.com/news/technology-53225720 [https://perma.cc/PES5-2YFA].
[74] See Exec. Order No. 1394, supra note 5.
[75] See Iorfida, Trump’s TikTok flip-flop, supra note 3; Krutika Pathi, Here’s what happened when India banned TikTok, PBS NEWS (Apr. 24, 2024, at 11:30 EST) https://www.pbs.org/newshour/world/heres-what-happened-when-india-banned-tiktok.
[76] See supra note 3.
[77] See supra note 75.
[78] See Diksha Madhok, What happened when the world’s most populous nation turned off TikTok, CNN Business (Mar.15, 2024, at 9:59 EDT) https://www.cnn.com/2024/03/14/tech/india-us-tiktok-ban-analysis-intl-hnk/index.html.
[79] Id.
[80] See Madison Clausius, NOTE: THE BANNING OF TIKTOK, AND THE BAN OF FOREIGN SOFTWARE FOR NATIONAL SECURITY PURPOSES, 21 Wash. U. Global Stud. L. Rev. 273, 282-284; See also Cybersecurity Laws and Regulations India 2025, iclg (June 11, 2024) https://www.lexorbis.com/cybersecurity-laws-and-regulations-india-2025/.
I. Introduction to Cobalt’s Wealth and Woe
The Democratic Republic of the Congo (DRC) holds the world’s largest cobalt reserves, producing an astounding 144,936 tons in 2022—73% of the global supply.[1] A cornerstone of modern technology, cobalt is a critical component of lithium-ion batteries, powering cellphones, laptops, electric vehicles, and other devices integral to renewable energy.[2] Its magnetic properties also support data storage, wind turbines, and medical equipment,[3] making it a strategic political, economic, and technological priority for the U.S., EU, China, and beyond.[4] Yet, the DRC’s immense underground wealth—estimated at over $24 trillion—has not translated to prosperity above ground due to geopolitical ambitions, economic inequality, and the devastating realities of artisanal mining.[5]
This analysis anchors an innovative approach to proactive reform by dissecting critical facets of cobalt mining in the DRC—breaking down the mining, consumer perception, Doe v. Apple’s influence, and bold solutions. It breaks down pro-active reform on Apple’s conflict mineral report from 2022, which states how “Apple’s … Commitment to Human Rights … governs how we treat everyone, including our customers, employees, business partners, and people at every level of our supply chain. We continue to source … minerals, such as cobalt … responsibly, while working to improve conditions in and around mining communities, including in the … DRC and adjoining countries.”
II. The Dark Shadow of Technology: Cobalt Miners Echoes from the Ground
Dubbed the “blood diamond of batteries,” cobalt drives an industry where an estimated 40,000 children labor in hazardous conditions, akin to debt bondage.[6] These miners face severe physical, mental, and emotional hazards, including exposure to toxic chemicals.[7] Despite its negative association, cobalt is not classified as a conflict mineral under U.S. law, unlike gold, tin, and tungsten’s regulation by the Dodd-Frank Act.[8] This oversight allows cobalt’s ethical violations to persist unchecked, as its extraction, while not tied directly to armed conflict, fuels systemic injustices.[9]
As it casts a long and toxic shadow over the DRC, advocates for reform, including Siddharth Kara in his book Cobalt Red, argue for reclassifying cobalt as a conflict mineral, calling for stricter traceability, accountability, and safety standards.[10] Yet, the discrepancy between industrial and artisanal mining remains blurred, leaving artisanal miners exposed to unregulated exploitation.[11] These miners, armed with little more than primitive tools, face dire conditions,[12] earning as little as $2.15 a day.[13] Women bear the dual, metaphorical and literal weight of grueling labor and family care,[14] while their children join the mines out of financial necessity, forfeiting education and well-being for survival.[15]
The risks in the cobalt supply chain are devastating.[16] Workers endure tunnel collapses, toxic dust exposure, and a lack of protective gear, with chronic injuries, lung disease, and paralysis.[17] Efforts like those by the Congregation of Our Lady of Charity of the Good Shepherd in Kolwezi offer glimpses of hope through education and meals, but the systemic challenges remain confounding.[18]
Beyond economic and humanitarian crises, the cobalt industry further pollutes the environment and endangers public health.[19] Communities commonly face carcinogenic exposure, birth defects, asthma, and “hard metal lung disease,”[20] alongside epidemics of cholera and measles.[21] Floods further devastate medical infrastructure,[22] while contaminated water and air turn once-livable regions into hazardous zones.[23] Gender-based violence and mental health crises deepen the suffering, leaving millions trapped in an unforgiving cycle of emergencies.[24]
The DRC’s political landscape is a volatile mix of corruption and instability, with only one peaceful power transfer in its 63 years of independence.[25] Electoral violence,[26] voter registration flaws, and distrust in the Independent National Electoral Commission deepen public skepticism.[27] Consequently, artisanal mining, restricted to ZEAs under SAESSCAM’s oversight, remains chaotic as regulatory gaps leave non-official zones rife with safety violations and exploitation.[28] Further, economic desperation drives the dysfunction: inflation soars past 20%, over 60% of the population lives in poverty, and officials exploit citizens through extortion for cobalt access and transport.[29] Corruption contaminates every level of control,[30] from selective enforcement of anti-corruption laws to nepotism and bribery in public services and the extractive sector, eroding institutional trust.[31] While the legal framework for reform exists, it’s crippled by political manipulation and systemic patronage.[32]
DRC President Tshisekedi’s tenure has been marred by unfulfilled promises of peace and anti-corruption.[33] With over 120 armed groups, including M23 and ISIS-linked ADF, the region has been destabilized for nearly three decades.[34] Even the state-sponsored FARDC, tasked with combating these threats, faces allegations of sexual assault, torture, and extrajudicial killings, further eroding reliance.[35]
Violence tied to mining operations compounds the crisis.[36] Military personnel linked to the Mutoshi project, run by Chemaf, reportedly burned homes in Mukumbi, displacing families and injuring children.[37] Farmers near the Metalkol RTR project, managed by an ERG subsidiary, have suffered devastating land losses.[38] These inter-communal conflicts fuel hate speech and impunity, stripping Congolese citizens of fundamental rights and forcing them into survival mode under dire conditions and, as noted above, without a helpful government to rely on.[39]
a. History of the DRC as a Focal Point for Cobalt Mining
Historically, the story of the DRC is one of exploitation and lost opportunity.[40] Following the First and Second Congo Wars, cobalt production rose from a modest 800 tons in 1994 to 14,800 tons by 2003, propelled by artisanal mining, multinational investments, and influential figures like George Forrest, John Bredenkamp, and Billy Rautenbach—who all have ties to the DRC armed forces.[41] A seismic shift occurred in 2005 when China’s industrial appetite drove massive cobalt purchases and the establishment of processing facilities, catapulting production to 27,100 tons by 2006.[42] In the years that followed, the Congolese government drastically expanded mining activities.[43]
As the world grappled with COVID-19 in 2020, cobalt miners in the DRC faced a ruthless choice—endure oppressive conditions, international labor violations, unsanitary housing, and relentless viral threats, or lose their livelihoods entirely.[44] Responding boldly, the Congolese government initiated sweeping renegotiations and regulatory reforms, reclaiming authority over its mineral riches.[45] While this worried Western investors, this pivot created a power shift, with China swiftly taking advantage and consolidating dominance in the cobalt market, reshaping the industry’s global hierarchy.[46]
Whereas the U.S was once a leader in cobalt control, the U.S. conceded, slashing its strategic raw materials stockpile from $22 billion in 1989 to a mere $888 million in 2022.[47] This laissez-faire approach has left U.S. industries increasingly dependent on Chinese cobalt, despite domestic efforts to promote eco-friendly mining and recycling.[48] Meanwhile, China has aggressively filled the void, dominating cobalt refining—crucial for energy and military tech.[49]
China’s strategy mirrors its broader African playbook: foreign direct investment skyrocketed from $75 million in 2003 to $4.2 billion in 2020, with trade ballooning from $10 billion in 2000 to $25 billion in 2021, weightily balanced on cobalt extraction.[50] While African nations, like the DRC, challenge China’s exploitative practices and unmet promises of ethical mining or infrastructure development, deals persist.[51] For instance, Chinese giants like Sinohydro Corp and China Railway Group have upped commitments to $7 billion in infrastructure projects, solidifying China’s foothold.[52] Additionally, Chinese-owned mines in the DRC employ over half the workforce under an infamous colonial-era cruelty.[53] As highlighted in the Congressional Executive Commission on China, sustainable mining and human rights protections are urgently needed.[54] Diverse collaborations are already shown by investments from countries including Australia, Japan, the United States, and Britain.[55]
With cobalt prices falling due to a surplus of it[56] and the EV industry’s pivot to lithium iron phosphate (LFP) batteries, now is the moment to break dependence on China-controlled mines,[57] like Australia’s $676 million investment in mineral processing.[58] For Apple, this is a rare chance to redefine leadership—turning resource challenges into catalysts for innovation and integrity.
III. The Crusade for Consumer and Corporate Conscience in Cobalt
Consumer awareness plays a pivotal role in the global struggle for control over critical resources like cobalt.[59] An informed, anti-exploitative consumer base can encourage businesses to adopt ethical sourcing and transparency, reshaping market dynamics[60] and driving a shift in purchasing habits that diversify supply chains.[61] Public figures like Ben Affleck and Kyrie Irving have amplified these demands, leveraging their platforms to spotlight corporate responsibility.[62] Similarly, cultural dialogues—spurred by podcasts from Joe Rogan[63] and Dua Lipa—encourage creative solutions and widespread dissemination.[64] However, the path to change is fraught with challenges.[65]
Ethical consumerism often raises costs, diminishing eagerness for advocacy.[66] China’s dominance in cobalt, unconstrained by democratic norms, stems from U.S. hesitation to procurement,[67] trapping their technological and renewable energy sectors in a labyrinth that puts them at a comparative disadvantage.[68] As Judge Nichols aptly described, this “chain of contingencies” underscores the intensifying legal battles shaping the future of corporate responsibility.[69]
IV. Doe’s Decree: A Complicated Congolese Canvas
The DRC plays a pivotal role as a key supplier in the global tech economy, particularly with American-based giants like Apple, Dell, Alphabet (Google), Microsoft, and Tesla’s procurement of cobalt.[70] Scrutiny over ethical procurement is not new but deeply entrenched.[71] As far back as 2009, the U.S. Department of Labor flagged cobalt production’s reliance on child labor, a systemic issue reaffirmed in subsequent reports.[72] By 2016, investigations uncovered exploitation within the industry by leaders Apple, Samsung, Microsoft, Daimler AG, and Volkswagen.[73]
Doe v. Apple stands as a stark reminder of the human cost underpinning our digital age.[74] Filed in December 2019 under the Trafficking Victims Protection Reauthorization Act (TVPRA), the lawsuit, originating in Washington, D.C., aimed to hold tech giants accountable for the corruption, violence, and legal voids embedded in their supply chains.[75] By invoking extraterritorial jurisdiction through the TVPRA, plaintiffs leveraged the defendants’ commercial presence.[76]However, the lawsuit was dismissed in November 2021, on the grounds of forum non conveniens and its speculative nature, raising concerns about corporate responsibility.[77]
Understanding the statutory framework behind this case is pivotal in navigating liability standards, especially when global giants like Apple are implicated. The TVPRA, enacted in 2000 and significantly amended in 2013, expanded both its reach and remedies.[78] Key amendments under 18 U.S.C. §1595 extended the statute of limitations to 10 years, while 18 U.S.C. §1596 extended extraterritorial jurisdiction over offenses outlined in Chapter 77—ranging from peonage (§1581) and forced labor (§1589) to trafficking (§1590) and child sex trafficking (§1591).[79] Crucially, it imposes liability on any individual or entity that “knowingly benefits, financially or by receiving anything of value from participation in a venture” involved in such violations.[80] This impaired the plaintiff’s claim in Doe: the crux of their argument focused on §1589 and §1590.[81] Nonetheless, there are still several legal obstacles to establishing standing and obtaining court remedies:
Extraterritorial Application of Law: In the wake of the Supreme Court’s Kiobel ruling, the Alien Tort Statute’s[82] extraterritorial application has been sharply restricted,[83] shifting the onus of demonstrating that the claims “touch and concern”[84] the related territory to the plaintiffs “with sufficient force” to displace the presumption against extraterritoriality; later decisions have reiterated that “mere corporate presence” and other generalized domestic corporate activity will not suffice.[85]
Forum Non Conveniens: By allowing a court to dismiss cases that may be better heard in other jurisdictions, cases shift to where harm occurred, but justice is often abandoned in the process.[86] This forces foreign nationals, such as cobalt mining victims in the DRC, to rely on their broken home system.[87]
Personal Jurisdiction and Limited Liability: According to the Daimler AG v. Bauman ruling, which further restricts the ability of courts to claim jurisdiction over international organizations, corporate arrangements and limited liability sometimes shield parent firms from being held responsible for the deeds of their subsidiaries.[88]
Vicarious Liability and Legal Standards: The absence of a unified international legal standard for vicarious liability, and the lack of a fully settled American standard for corporate accountability in transnational human-rights aiding-and-abetting claims, creates a murky landscape in determining corporate accountability for human rights abuses, particularly in instances of aiding and abetting.[89] With layers of intermediaries obscuring the mineral’s origin, accurately tracing its path from mine to market becomes a near-impossible mission, leaving companies swaying between unwitting complicity and willful exploitation.[90]
Choice/Conflict of Law and Statutes of Limitations: Legal doctrines set the stage and the stopwatch, determining where battles unfold and how quickly the fight begins, which might put plaintiffs at a disadvantage based on jurisdiction and preparation.[91]
The Price of Legal Actions and “Loser Pays”: Many prospective plaintiffs are discouraged, especially those with limited finances, by the high expenses of litigation and likelihood of having to pay the defendant’s legal fees if the case is lost.[92]
Practical Obstacles in Evidentiary Matters: Gathering sufficient evidence against multinational corporations is a tall task, enmeshed in intricate business practices, cross-border discovery hurdles, and threats faced by witnesses who risk retaliation.[93] Discovery may offer a path, but unlocking that door is no small feat, demanding precision and persistence amid laws that often clash in scope and scheme.[94]
Collective Redress and Class Action Mechanisms: Rulings like Wal-Mart v. Dukes have weakened the effectiveness of class actions in human rights cases, while the absence of comparable procedures in Europe is a major barrier.[95]
Amid growing scrutiny of global supply chains, Doe 1 v. Apple appealed in December 2022.[96] Plaintiffs accused intermediaries like Glencore, Zhejiang Huayou Cobalt Company, and the Eurasian Resources Group of diluting and obscuring forced labor products with ethically sourced materials.[97] This alleged tactic funneled through suppliers like Umicore, shielded tech giants from direct liability, despite purported awareness of exploitation.[98] However, the victims’ “case or controversy” hinged on the TVPRA and how these tech giants’ “participation in a venture” in the international cobalt supply chain intentionally exacerbated the exploitation, not just obtaining an unknown amount of cobalt as part of the global supply network.[99]
Under Rule 12(b)(6), the Plaintiffs’ case underwent rigorous scrutiny, with the terms “participation” and “venture” dissected to their principles.[100] While the Plaintiffs painted a vivid picture of corporations as covert orchestrators sustaining forced labor, proving this claim is a minefield, since the supply chain may reflect standard commercial dealings lacking a “tacit agreement.”[101] In essence, the Plaintiffs’ argument faltered under speculation, attempting to distinguish shared risks and profits without tangible evidence—likely unattainable due to opacity and numerous intermediaries.[102]
Furthermore, under Article III of the U.S. Constitution, courts hear disputes involving real adversaries, not hypothetical scenarios and questions.[103] Plaintiffs must show (1) a valid claim for damages, (2) a direct link to the defendant’s actions, and (3) a plausible fix through a court ruling.[104] Here, the court found no clear remedy, rendering Plaintiffs’ claims—unjust enrichment, negligent supervision, emotional distress, and injunctive relief—null under insufficient proof.[105]
V. Cobalt’s Chessboard of Moral Mines: The Game of Gain and Governance
The pursuit of ethical cobalt in the DRC is entangled in a web of contingencies that challenge success for all stakeholders. For example, even with innovations like cobalt-free batteries[106] or Apple pledging to rely solely on recycled cobalt in Apple-designed batteries,[107] a corporate exodus risks exacerbating its struggles by ceding control to China in the cobalt tug-of-war.[108]
Should Apple and other businesses shoulder blame for a sovereign state’s sins? What if that territory controls vital resources to nations and businesses alike, where a hostile rival exploits the same system without restraint? With international initiatives, like the United Nations Guiding Principles on Business and Human Rights,[109] OECD Guidance on due diligence in mineral supply chains,[110] and “Cobalt for Development,”[111] too weak to hold anyone accountable, where does responsibility lie? On corporations? On consumers, whose demand fuels the cycle? It’s easy to get lost in the semantics of a complicated system of contingencies.
The stakes transcend borders and boardrooms, as the path forward demands a collaborative effort between governments, businesses, consumers, and advocacy organizations—not in token gestures, but through diplomacy, targeted intervention, and strategic invention. Apple’s own commitment underscores a leap from paper to practice as solutions reconcile profit with purpose: “Although [we do] not directly purchase, procure, or source primary minerals, [we] are committed to meeting and exceeding internationally-accepted due diligence standards … in our supply chain.”[112] Opponents might argue that the black ink on a financial ledger cannot mix with the emotional concerns of a people’s suffering; however, aligning ethical values with economic value can drive profit to meet purpose—cutting costs, securing market exclusivity, ensuring compliance, and winning over ethical consumers.[113]
VI. Conclusion — Weighing Wills and Ways Forward for Ethical Cobalt
Investing in the DRC is not just ethical—it’s strategically sound. A recent EU agreement was reached by legislators of Parliament and Council, that prohibits businesses of all sizes from distributing goods within the area that were manufactured using forced labor,[114] which can impact Apple’s 24% share of the EU smartphone market.[115] If the toll of compliance seems steep, the fines for failure may be far steeper.[116] Beyond being home to the world’s largest cobalt reserves, the DRC also boasts vast natural wealth: timber, oil, diamonds, copper,[117] hydropower potential, arable land, immense biodiversity, and the planet’s second-largest rainforest.[118] These resources, alongside billions of humanitarian and bilateral aid,[119] represent untapped opportunities for transforming cobalt’s legacy from a scar of exploitation in the DRC to a spark of innovation globally.
[1] Bruno Venditti, Ranked: The World’s Top Cobalt Producing Countries, VISUAL CAPITALIST (July 24, 2023), www.visualcapitalist.com/ranked-the-worlds-top-cobalt-producing-countries.
[2] Cobalt Institute, Why Is Cobalt Important, www.cobaltinstitute.org/essential-cobalt-2/#:~:text=Cobalt%20is%20used%20in%20the,conductors%20in%20computers%20and%20phones (accessed Feb. 24, 2024).
[3] Id.
[4] Venditti, supra note 1.
[5] Apple Inc., United States Securities and Exchange Commission FORM SD Specialized Disclosure Report, APPLE INC. (Feb. 2023), https://www.apple.com/euro/supplier-responsibility/l/generic/pdf/Apple-Conflict-Minerals-Report.pdf [https://perma.cc/G8LC-79EJ].
[6] Leigh Day, Cobalt Mining in the Democratic Republic of Congo: Where Next?, LEXOLOGY (June 22, 2023), www.lexology.com/library/detail.aspx?g=2deb7a71-3439-402e-8afd-5ba917931367#:~:text=Holding%20the%20tech%20giants%20to%20account%20%2D%20Doe%20v%20Apple&text=The%20Plaintiffs%20sought%20compensation%20for,Protection%20Reauthorization%20Act%20(TVPRA) [https://perma.cc/PJ3M-Q7DQ].
[7] Id.
[8] Patricia Ndagano, No, Cobalt Is Not a Conflict Mineral, African Arguments (May 5, 2020), africanarguments.org/2020/05/no-cobalt-is-not-a-conflict-mineral/#:~:text=Conflict%20minerals%20refer%20to%20a,groups%20in%20the%20eastern%20DRC [https://perma.cc/QW6A-4EE9]. The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 represents a legislative response to the complexities of financial ethics, transparency, and global human rights. Born from the ashes of the 2008 financial crisis, this expansive statute not only reshaped financial regulation to shield American consumers from market excesses but also sought accountability for corporations benefiting from minerals that finance violent conflict in Central Africa. Notably, Section 1502 compels companies to meticulously trace and publicly disclose the origins of four key conflict minerals—tin, tantalum, tungsten, and gold—derived from the Democratic Republic of the Congo and its neighboring countries. By linking corporate transparency directly to humanitarian outcomes, the Act aims to sever financial lifelines that sustain armed groups perpetrating severe human rights abuses and destabilizing a geopolitically sensitive region;
United States Government Accountability Office, Conflict Minerals: 2022 Company Reports on Mineral Sources Were Similar to Those Filed in Prior Years, GAO-23-106295 (July 2023), www.gao.gov/assets/gao-23-106295.pdf.
[9] Id.
[10] See Siddharth Kara, Cobalt Red: How the Blood of the Congo Powers Our Lives (2023).
[11] Id.
[12] Terry Gross, How ‘Modern-Day Slavery’ in the Congo Powers the Rechargeable Battery Economy, NPR (Feb. 1, 2023, 12:38 PM), https://www.npr.org/sections/goatsandsoda/2023/02/01/1152893248/red-cobalt-congo-drc-mining-siddharth-kara [https://perma.cc/8BUW-XUNH]
[13] Valentina Ruiz Leotaud, Families in the DRC Increasingly Rely on Children Working in Cobalt Mines — Report, MINING.COM (July 16, 2023, 8.29 AM), [https://perma.cc/WV4M-T96D].
[14] Supra note 13.
[15] Amnesty Int’l, “This Is What We Die for”: Human Rights Abuses n The Democratic Republic of the Congo Power the Global Trade in Cobalt at 33, 37 (2016), www.amnesty.org/en/wp-content/uploads/2021/05/AFR6231832016ENGLISH.pdf [https://perma.cc/A8CV-H4RP].
[16] Id.
[17] Id. at 5, 22, 29.
[18] Id. at 32.
[19] ‘Cobalt Red’: Smartphones and Electric Cars Rely on Toxic Mineral Mined in Congo by Children, Democracy Now! (July 13, 2023), www.democracynow.org/2023/7/13/cobalt_red_kara.
[20] Id.
[21] World Health Organization, Democratic Republic of the Congo Faces Acute Health Crisis Amid Rising Violence, (June 23, 2023), www.afro.who.int/countries/democratic-republic-congo/news/democratic-republic-congo-faces-acute-health-crisis-amid-rising-violence [https://perma.cc/AFF2-QWRX].
[22] Id.
[23] The Conversation, ‘We Miners Die a Lot’: The Appalling Conditions and Poverty Wages of Congo Cobalt Miners, Fast Company (Feb. 4, 2024), www.fastcompany.com/91021938/we-miners-die-a-lot-the-appalling-conditions-and-poverty-wages-of-congo-cobalt-miners [https://perma.cc/5VKR-9A6K].
[24] Democracy Now!, supra note 21.
[25] Five Key Issues at Stake in the DR Congo’s Crucial Election, Al Jazeera (Dec. 11, 2023), www.aljazeera.com/news/2023/12/11/five-key-issues-at-stake-in-the-dr-congos-crucial-election [https://perma.cc/DG2F-C7KA].
[26] Democratic Republic of the Congo, Global Centre for the Responsibility to Protect (July 15, 2025), www.globalr2p.org/countries/democratic-republic-of-the-congo [https://perma.cc/3BAR-DWPK].
[27] Democracy Now!, supra note 21.
[28] Kara, supra note 12.
[29] Sarah Carter, U.S. Helps Negotiate Cease-fire for Congo Election as World Powers Vie for Access to Its Vital Cobalt, CBS NEWS (Dec. 19, 2023), https://www.cbsnews.com/news/congo-cease-fire-election-cobalt-mining/ [https://perma.cc/35V7-SBL7].
[30] Id.
[31] Democratic Republic of the Congo – Market Overview, Int’l Trade | TRADE.GOV (Dec. 14, 2022), https://www.trade.gov/country-commercial-guides/democratic-republic-congo-market-overview [https://perma.cc/D79A-LG6H].
[32] Id.
[33] Kara, Supra note 30.
[34] Al Jazeera, Supra note 27.
[35] Global Centre for the Responsibility to Protect, supra note 28.
[36] Democratic Republic of the Congo: Industrial Mining of Cobalt and Copper for Rechargeable Batteries Is Leading to Grievous Human Rights Abuses, Amnesty Int’l(Sept. 12, 2023), https://www.amnesty.org/en/latest/news/2023/09/drc-cobalt-and-copper-mining-for-batteries-leading-to-human-rights-abuses/ [https://perma.cc/36FN-YNEX].
[37] Amnesty Int’l, supra note 38. (Chemaf is a leading producer of battery-grade copper and cobalt, operating high-capacity, ISO-certified plants at the core of Africa’s mineral-rich zones. With flagship assets and next-gen processing underway, it’s rapidly becoming a cornerstone of the world’s sustainable future.); See Chemaf, Our Business, https://chemaf.com/our-business/ [https://perma.cc/36FN-YNEX] (last visited Apr. 7, 2025).
[38] Amnesty Int’l, supra note 38.
[39] Id.
[40] Andrew L. Gulley, One Hundred Years of Cobalt Production in the Democratic Republic of the Congo, 79 Resources Policy Article 103007 (2022), https://doi.org/10.1016/j.resourpol.2022.103007.
[41] Id. at 7.
[42] Id.
[43] Id.
[44] Human Rights Watch, DR Congo: Mine Workers at Risk During Covid-19, (June 11, 2020), www.hrw.org/news/2020/06/11/dr-congo-mine-workers-risk-during-covid-19?gad_source=1&gclid=CjwKCAiAq4KuBhA6EiwArMAw1Fn8CJ302_2tYfMAiJYfFTmXbWnbX0Kg3yzm-bpFKCRUvr345KtNLxoCEZ4QAvD_BwE [https://perma.cc/9FKC-ZDAC].
[45] Supra note 41.
[46] Melissa Skorka, To Counter China, Look to the Democratic Republic of Congo, Wall St. J. (Apr. 27, 2023, 6:43 PM ET), https://www.wsj.com/business/to-counter-china-look-to-the-democratic-republic-of-congo-cobalt-rare-earth-9191253a?mod=Searchresults&pos=1&page=1.
[47] Sean Carberry, Critical Mineral: United States Seeking Alternatives to Chinese Cobalt, 107 National Defense 28, 28 (Aug. 2022).
[48] Id.
[49] South China Morning Post, Chinese Firms Agree to Raise Investment in Democratic Republic of Congo Copper-cobalt Mining Deal, Yahoo! Finance (Feb. 4, 2024), finance.yahoo.com/news/chinese-firms-agree-raise-investment-093000661.html.
[50] Gracelin Baskaran, A Window of Opportunity to Build Critical Mineral Security in Africa, CSIS (Oct. 10, 2023), www.csis.org/analysis/window-opportunity-build-critical-mineral-security-africa [https://perma.cc/F9WR-NMLD].
[51] Id.
[52] South China Morning Post, supra note 51.
[53] David Thomas, Workers Report ‘Colonial-era’ Abuse at Congolese Cobalt Mines, African Business (Nov. 9, 2021), african.business/2021/11/energy-resources/workers-report-colonial-era-abuse-at-congolese-cobalt-mines [https://perma.cc/5BE3-XWAZ].
[54] Congressional-Executive Commission on China, From Cobalt to Cars: How China Exploits Child and Forced Labor, YouTube (Nov. 14, 2023), www.youtube.com/watch?v=oSXo4dPpRQ8.
[55] Supra note 52.
[56] Franchesca Viernes, Oversupply, Low Prices for Cobalt to Persist in 2024 as Demand Slips, S&P Global Commodity Insights (Dec. 27, 2023), www.spglobal.com/commodityinsights/en/market-insights/latest-news/metals/122723-oversupply-low-prices-for-cobalt-to-persist-in-2024-as-demand-slips.
[57] Pratima Desai, Cobalt Supplies to Swamp Market, Pressure Prices Further, Reuters (Mar. 7, 2023), www.reuters.com/markets/commodities/cobalt-supplies-swamp-market-pressure-prices-further-2023-03-07/#:~:text=Global%20supplies%20of%20refined%20cobalt,rise%208%25%20to%20205%2C000%20tonnes [https://perma.cc/4XLX-J4NL].
[58] Australia Looks to Boost Domestic Mineral Processing Industry With $676 Million Fund, Benchmark Minerals (June 21, 2023), source.benchmarkminerals.com/article/australia-looks-to-boost-domestic-mineral-processing-industry-with-676-million-fund.
[59] Supra note 13.
[60] See Carlos Moncayo, The Economic Benefits and Best Practices of Ethical Sourcing, Forbes (Apr. 4, 2023, 8:30am), www.forbes.com/councils/forbesbusinesscouncil/2023/04/04/the-economic-benefits-and-best-practices-of-ethical-sourcing/ [https://perma.cc/R6M5-WWYG]
[61] See Beyond Dependence: The Power of Supply Chain Diversification, Exiger (Sept. 4, 2024), https://www.exiger.com/perspectives/beyond-dependence-the-power-of-supply-chain-diversification/ [https://perma.cc/X4X4-F6SY].
[62] Josh Wilson, Entertainment Industry Becomes More Vocal About the Cobalt Situation in the Congo, Forbes (Mar. 15, 2023, 8:07 AM), www.forbes.com/sites/joshwilson/2023/03/15/entertainment-industry-becomes-more-vocal-about-the-cobalt-situation-in-the-congo/?sh=2b7eabbbddf3 [https://perma.cc/LJ4K-4H5D].
[63] Id.
[64] Stephanie Kaloi, Apple’s Tim Cook Tells Dua Lipa ‘We Can’ Guarantee Children Aren’t Mining iPhone 15’s Cobalt, The Wrap (Nov. 18, 2023), www.thewrap.com/apple-iphone-cobalt-tim-cook-dua-lipa-children-miners-labor.
[65] Luisa Gatward, Shopping Habits Are Changing, What Will It Be Like in 2030?, The Giving Machine (Aug. 10, 2023), www.thegivingmachine.co.uk/blog/posts/how-our-shopping-habits-are-changing/#:~:text=The%20shopping%20habits%20of%20consumers,more%20selective%20in%20their%20spending [https://perma.cc/R9NY-EVFJ].
[66] Derek Pankratz et al., The Cost of Buying Green, Deloitte Insights (June 17, 2022), www.deloitte.com/us/en/insights/industry/retail-distribution/consumer-behavior-trends-state-of-the-consumer-tracker/sustainable-products-and-practices-for-green-living.html [https://perma.cc/L8G5-2FTY].
[67] Mary Louise Kelly et al., The U.S. Supports China’s Growth if It ‘Plays by the Rules,’ Commerce Secretary Says, NPR (Dec. 5, 2023, 5:00am), www.npr.org/2023/12/05/1217040572/the-u-s-supports-chinas-growth-if-it-plays-by-the-rules-commerce-secretary-says [https://perma.cc/WG69-JKTN].
[68] Daniel Quiggin & Richard King, Cobalt Refining Power Gives China an Advantage in the Race for EV Battery Dominance, Resource Trade Earth (July 4, 2023), resourcetrade.earth/publications/critical-metals-ev-batteries [https://perma.cc/APF4-SZ7U].
[69] Gert Van Calster, A Quick (Jurisdictional) Note on the Cobalt Supply Chain Litigation, Gavc Law(Nov. 2, 2020), gavclaw.com/2020/02/11/a-quick-jurisdictional-note-on-the-cobalt-supply-chain-litigation[https://perma.cc/6Y6A-JQD7].
[70] William S. Dodge, Oral Argument in Doe v. Apple, Transnational Litigation Blog (Dec. 13, 2022), tlblog.org/oral-argument-in-doe-v-apple [https://perma.cc/NJE4-XCUW].
[71] Supra note 10.
[72] Id.
[73] Amar Toor, Apple and Samsung Suppliers Linked to Child Labor in Africa, Report Says, The Verge (Jan. 18, 2016, 6:01 PM), www.theverge.com/2016/1/18/10786714/apple-samsung-child-labor-cobalt-congo-amnesty [https://perma.cc/LQ78-RQF2].
[74] Doe I v. Apple Inc., No. 1:19-CV-03737 (CJN), 2021 WL 5774224 (D.D.C. Nov. 2, 2021), aff’d sub nom. Doe 1 v. Apple Inc., No. 21-7135, 2024 WL 925889 (D.C. Cir. Mar. 5, 2024).
[75] Id.
[76] Id.
[77] Maria Piontkovska & Doriane Nguenang, US Court Dismissed Cobalt Mining Forced Labor Lawsuit Against Tech Companies – Global Supply Chain Compliance, Global Supply Chain Compliance (Nov. 18, 2021), supplychaincompliance.bakermckenzie.com/2021/11/18/us-court-dismissed-cobalt-mining-forced-labor-lawsuit-against-tech-companies [https://perma.cc/Y7FD-YVXT].
[78] Supra note 71.
[79] Id.
[80] Id.
[81] Id.
[82] Alien Tort Statute, 28 U.S.C. § 1350 (2018).
[83] Tara McGrath, Kiobel v. Royal Dutch Petroleum: Delineating the Bounds of the Alien Tort Statute, 8 Duke J. Const. L. & Pub. Pol‘y Sidebar (2012).
[84] Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124–25 (2013).
[85] Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931, 1936–37 (2021); Stephen P. Mulligan, Cong. Rsch. Serv., R44947, The Alien Tort Statute: A Primer 13, 20 (Jan. 11, 2022); Gwynne L. Skinner, Beyond Kiobel: Providing Access to Judicial Remedies for Violations of International Human Rights Norms by Transnational Business in a New (Post-Kiobel) World, 46 Colum. Hum. Rts. L. Rev. 158, 162 (2014).
[86] Id.
[87] Joseph N. Sotile, Forum Non Conveniens and Corruption: A Lofty Hurdle or a Solid Barrier to Justice?, Colum. J. Transnat’l L. (2023), www.jtl.columbia.edu/bulletin-blog/forum-non-conveniens-and-corruption-a-lofty-hurdle-or-a-solid-barrier-to-justice [https://perma.cc/87RL-7WCE].
[88] Daimler AG v. Bauman, 134 S. Ct. 746, 760 (2014).
[89] Jindan-Karena Mann, Tech Company Liability in the Context of the Cobalt Supply Chain, Rethinking SLIC (Dec. 23, 2020), www.rethinkingslic.org/blog/tort-law/78-tech-company-liability-in-the-context-of-the-cobalt-supply-chain [https://perma.cc/H2QD-BW92].
[90] Id.
[91] McGrath, supra note 85.
[92] Mann, supra note 89.
[93] Id.
[94] Alvaro Cuervo-Cazurra et al., Multinationals’ Misbehavior, 56 J. World Bus.101244, 17 (2021).
[95] Timothy D. Edwards, Class Action Suits After Walmart v. Dukes, 84 Wis. Law. (Nov. 2011).
[96] Doe 1 v. Apple Inc., 96 F.4th 403 (D.C. Cir. 2024).
[97] Id. at 407.
[98] Id. at 406–07.
[99] Id.
[100] Id. at 414–16.
[101] Id. at 416.
[102] Id. at 414.
[103] Id. at 408.
[104] Id. at 405.
[105] Id. at 416–17.
[106] Supra note 62.
[107] Press Release, Apple, Apple Will Use 100 Percent Recycled Cobalt in Batteries by 2025 (Apr. 13, 2023), www.apple.com/newsroom/2023/04/apple-will-use-100-percent-recycled-cobalt-in-batteries-by-2025 [https://perma.cc/2QDW-PBJW].
[108] Stéphanie Thomson, 4 Companies Helping Rebuild Conflict-Ridden Countries, World Economic Forum (May 6, 2016), www.weforum.org/stories/2016/05/4-companies-helping-rebuild-conflict-ridden-countries/ [https://perma.cc/4D6V-VT7K].
[109] U.N. Hum. Rts. Off. of the High Comm’r, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, U.N. Doc. HR/PUB/11/04 (June 16, 2011), www.ohchr.org/sites/default/files/documents/publications/guidingprinciplesbusinesshr_en.pdf [https://perma.cc/U7WQ-QL52].
[110] Supra note 37.
[111] Cross-industry Partnership to Enhance Sustainable Cobalt Mining, BASF, https://www.basf.com/global/en/who-we-are/sustainability/we-source-responsibly/cobalt-initiative.html (last visited Feb. 24, 2024) [https://perma.cc/SZ74-7NJ8].
[112] Adams, supra note 7.
[113] Moncayo, supra note 62.
[114] EU Reaches Provisional Agreement on Banning Products Made With Forced Labour, Cooley (Mar. 13, 2024), https://www.cooley.com/news/insight/2024/2024-03-13-eu-reaches-provisional-agreement-on-banning-products-made-with-forced-labour [https://perma.cc/7PW3-2CBB].
[115] Federica Laricchia, Apple’s Share of Smartphone Shipments in Europe 2019-2023, Statista (Jan. 31, 2024), www.statista.com/statistics/1232268/apple-smartphone-market-share-in-europe.
[116] William M. Sullivan Jr. & Fabio Leonardi, Prosecuting Corporations That Benefit Financially from Human Trafficking, Pillsbury (July 24, 2019), https://www.pillsburylaw.com/en/news-and-insights/prosecuting-corporations-that-benefit-financially-from-human-trafficking.html [https://perma.cc/P9NM-DCL8].
[117] UN Environment Programme, Can the Democratic Republic of the Congo’s Mineral Resources Provide a Pathway to Peace?, UNEP (Sept. 20, 2022), https://www.unep.org/news-and-stories/story/can-democratic-republic-congos-mineral-resources-provide-pathway-peace.
[118] The World Bank in DRC, World Bank (Sept. 25, 2023), https://www.worldbank.org/en/country/drc/overview#:~:text=DRC%20is%20endowed%20with%20exceptional,not%20benefited%20from%20this%20wealth [https://perma.cc/C6FD-RWGQ].
[119] U.S. Embassy Kinshasa, What the United States Is Doing in the DRC, U.S. Embassy (Mar. 4, 2024), cd.usembassy.gov/what-the-united-states-is-doing-in-the-drc [insert permalink].
“Shut up and push”,[1] was the message received by Irma López Aurelio, an indigenous Mazatec woman, who gave birth on the grass outside a Health Center in Oaxaca, Mexico, due to insufficient beds.[2] She was not the first woman to give birth under such conditions of “obstetric violence”, in fact, for many women in Mexico, giving birth is filled with violence and trauma or deeply distressing experiences that are frequently normalized and hidden.[3] Three out of ten women suffer obstetric violence in Mexico, and the testimonies show a systematic pattern of mistreatment and violence[4] against women’s rights.
This phenomenon has such magnitude, that Latin American activists use the term “obstetric violence” to describe violence during pregnancy, childbirth, and postpartum.[5] This includes acts or omissions that produce a lack of access to reproductive health services or medical abuse, and cruel, inhuman, or degrading treatment.[6] Female patients may endure physical and psychological manifestations. The former encompasses invasive practices, such as unjustified cesarean sections, non-consensual or forced sterilization, unjustified administration of medications, delayed emergency medical care, or disrespect for childbirth timelines. Whereas, the latter manifests itself as discriminatory acts, the use of offensive, humiliating, or sarcastic language, lack of timely information about the reproductive process, and dehumanizing treatment.[7]
Obstetric violence is a massive cultural problem in Mexico. Despite global efforts to prevent gender-based violence (GBV), underlying cultural interpretations of women’s roles, societal expectations, and religious stereotypes still actively contribute to this phenomenon.[8] Obstetric violence is perceived as a side effect of “culture”, and has not received the same interest as other forms of violence against women (VAW).[9] This issue pushes us to see that despite the existence of a solid international and national legal and jurisprudential framework, a state may depart from international obligations and human rights standards because of its culture.[10] Obstetric violence is a clear example of how cultural relativist approaches[11] fail women, and why we cannot continue to justify Violence Against Women in the name of “culture”.
This article focuses on Mexico and explores a form of GBV relative to reproductive health, known as obstetric violence. It aims to understand how Mexico deviates from international women´s rights due to its deeply rooted cultural context. Part I provides case studies on the current obstetric violence practices in Mexico; Part II studies the laws and jurisprudence surrounding obstetric violence; and Part III addresses potential solutions for the reduction of Obstetric Violence in Mexican cultural contexts.
I. Case Study: Mexico and the Phenomenon of Obstetric Violence
As we delve into the specific case of Mexico, it becomes imperative to understand contemporary practices of obstetric violence and the influence of cultural factors in this unique context. Therefore, Part I(a) provides an overview of contemporary practices of obstetric violence in Mexico, while Part I(b) analyzes their impact.
a. Contemporary Practices of Obstetric Violence in Mexico
Mexico faces unique challenges addressing obstetric violence due to deeply ingrained cultural norms surrounding women and childbirth. Traditional gender roles, societal expectations, patriarchy,[12] misogyny,[13] gender-based violence,[14] and historical influences of discrimination against women[15] create a complex landscape where women historically have been perceived as “inferior” or “dependent” on men. These power dynamics and “unconscious biases” rationalize the unjust perpetuation of violence against women during pregnancy, labor, and delivery. Notably, they are especially present in the healthcare setting, where seventy percent of doctors are male.[16]
Disrespect and abuse during pregnancy, labor, and delivery stem from cultural norms and power imbalances between women and medical staff. [17] Women are often seen as incapable of making decisions, while doctors assume superiority. [18] Consequently, this has led to the objectification of women’s bodies and dehumanizing treatment in healthcare settings.[19] Examples include disrespectful behavior, violations of informed consent, and neglect of women’s autonomy during childbirth, such as forced sterilizations, unauthorized C-sections, and coercive procedures.[20]
In this sense, obstetric violence is a form of gender-based violence, perpetrated by healthcare providers against pregnant individuals during pregnancy, childbirth, and postpartum.[21] Inter-American Human Rights treaties prohibit this form of GBV, including the Belém do Pará Convention.[22] This form of violence is predominantly—although not exclusively—characterized by dehumanizing, disrespectful, abusive, or negligent treatment towards pregnant women. It encompasses actions such as denying treatment or comprehensive information about health status and applicable treatments, engaging in forced or coerced medical interventions, and displaying a tendency to pathologize natural reproductive processes, viewing normal aspects of pregnancy and childbirth as medical problems that need treatment, even when they don’t.[23] For example, doctors have induced labor or performed a C-section, when the pregnancy was progressing normally and there were no complications.[24]
In Mexico, millions of women face obstetric violence, with 31.4% experiencing mistreatment during pregnancy, childbirth, and postpartum[25] including psychological or physical mistreatment (20.8%), unauthorized medical treatments (20%), lack of consent for cesarean sections (8%), and imposition of contraceptive methods or sterilization (over 4%).[26] Moreover, according to the World Health Organization (WHO) between 88% and 98% of maternal deaths could have been prevented.[27] Obstetric violence manifests in various forms, like ignoring a pregnant woman’s concerns or preferences during childbirth, performing unnecessary medical interventions without the woman’s consent, refusing to provide adequate information about medical procedures or options, using abusive language or behavior, or even conducting unnecessary pelvic exams or vaginal interventions without consent.
The Committee on the Elimination of Discrimination against Women (“CEDAW Committee”) in its concluding observations on Mexico’s ninth periodic report on compliance with the Convention on the Elimination of All Forms of Discrimination against Women, expressed concern about reports of obstetric violence by medical personnel during childbirth, and reports of forced sterilization of women and girls.[28] It also addressed the limited access to reproductive health services.[29] The report recommended a series of measures to decrease maternal mortality and suggested harmonization of federal and state laws to define obstetric violence as institutional and gender-based violence.[30] However, reports continue to declare 33.4% of the 8.7 million women in Mexico who gave birth suffered some type of mistreatment by medical professionals, while 26% spoke an indigenous language or identified as indigenous.[31]
Even if Mexico is perceived as somehow “progressive” because it federally decriminalized abortion,[32] women in Mexico still face severe challenges to access healthcare due to societal and gender biases. A recent example is the case of Aurelia, a young indigenous woman from Guerrero, Mexico, who faced a traumatic experience when an obstetric emergency led to a miscarriage and infanticide accusations.[33] Despite seeking help at a health center, she was denied assistance, and the subsequent miscarriage at her aunt’s house led to her unwarranted arrest on charges of killing her newborn.[34] Afterwards, Aurelia’s trial was amplified by media coverage and was marked by discrimination and misunderstandings about pregnancy.[35] However, with the help of a culturally sensitive and gender-inclusive judicial system[36] and with support from advocacy groups and legal advocates who understand the political and cultural aspects that underlie Aurelia‘s arrest charge, she was acquitted in December 2022, after spending over two years in prison. Notably, Aurelia’s case is not a rare occurrence, Aurelia’s case reveals the impact of cultural biases and gender stereotypes, and how they can perpetuate violence against women.
b. The Impact of Cultural Factors on Obstetric Violence in Mexico
While the specific forms of obstetric violence vary, cultural factors substantially impact obstetric violence in Mexico. In fact, “[o]bstetric violence lies at the crossroads between gender violence and structural violence.”[37] Despite legal framework and policy development advancements, effective implementation of measures to prevent and address obstetric violence encounter cultural resistance from doctors, judges or even prosecutors. Deep-seated beliefs about women’s subjugation during childbirth, power dynamics in healthcare settings, and a lack of awareness contribute to challenges in combating obstetric violence effectively.
In addition, the women who already face diverse forms of marginalization —like women of color, indigenous, poor or LGBTQ persons—, are more vulnerable to forms of obstetric violence.[38] For instance, this was the case of Estela, an indigenous woman who was forced to get an implanted form of contraception after giving birth, solely due to her indigenous origins.[39] In fact, indigenous women’s bodies have historically been targeted for violence, and the medical setting is not an exception. Obstetric violence is a phenomenon where the domestic, structural, and political intertwine to perpetuate violence against women.[40]
In fact, Mexico is a deeply misogynistic culture.[41] This is because women are not fully integrated to the workforce and are still expected to be the primary caretakers of children.[42] Women in Mexico face a high volume of violence in many forms, mostly due to cultural stereotypes.[43] Social media has also powerfully impacted, sometimes unintentionally, conveying discriminatory messages or images, perpetuating harmful gender stereotypes and promoting misogyny.[44]
Gender stereotyping is a very frequent practice in Mexico that permeates throughout the judicial spheres[45]—including access to justice.[46] Accordingly, state agents’ remarks and attitudes reveal a prejudiced and preconceived outlook regarding women’s roles as mothers and the associated societal expectations of motherhood.[47] They portray women as wives, mothers and caregivers, while men as heads of the household. This generates negative consequences for women, limiting their life plans and opportunities.[48]In addition, the effect of 78% of Mexico’s population being Catholic[49] bears a large cause to the stigmas and cultural ideas of women as child bearers, caretakers, and domestic.[50] Meanwhile, independent women are seen with a suspicious eye. In addition, cultural stigmas in Mexico profoundly reject feminism.[51]
Hence, the origin of the misogynistic deeply rooted beliefs that permeate the healthcare setting, further increasing the occurrence of obstetric violence. A form of medical violence which stems from a power imbalance between pregnant women and healthcare institutions, driven by a “biomedical care model.”[52] It combines gender-based and institutional elements, using the imposition of specialized medical knowledge to undermine women’s reproductive autonomy. Coerced procedures, like unnecessary cesarean sections and sterilizations, are often performed under the guise of medical necessity, with consent obtained under questionable circumstances due to pressure from healthcare personnel.[53]
Furthermore, gender stereotypes and ideas surrounding motherhood exacerbate the mistreatment and violence that women and pregnant individuals face in the provision of reproductive services. To understand the violence of these practices, it is necessary to question the hegemonic model of care during pregnancy, childbirth, and the postpartum period—which involves a power imbalance that places women in a subordinative position and makes them inferior to doctors—and mostly—to men. In fact, childbirth led by healthcare professionals and not by birthing women is a very conducive scenario for gender-based violence.[54] The delivery room serves as an ideal setting to illustrate the patriarchal denial and appropriation of women’s bodies. In fact, a lot of social controls exist during pregnancy and childbirth. Healthcare professionals infantilize and treat pregnant women with pathologization, as though doctors “know better”, disregarding their autonomy and expertise about their own bodies.[55] For example, mothers are held responsible for difficulties in childbirth, and they are prevented from trusting their own consent or bodily sensations.[56] Women’s bodies and experiences are denied, controlled, and appropriated by the medical establishment.[57]
From a legal standpoint, gender-based stereotypes in the judiciary create frequent obstacles for victims in addressing individual obstetric violence cases in Mexico. General corruption further contributes to an environment of impunity, or freedom from punishment, harm, or loss,[58] enabling recurrence of such incidents. This communicates a message that obstetric violence can go unaddressed, perpetuating its occurrence and societal acceptance. This situation heightens feelings of insecurity among women affected by obstetric violence and fosters a sustained lack of trust in the country’s judicial system.[59]
Therefore, it becomes especially difficult to enforce judicial rules against obstetric violence when cultural challenges exist, like resistance from conservative groups, lack of information around GBV and good healthcare practices, as well as societal expectations around motherhood. For this reason, international organizations have recognized that the widespread gender-based discrimination, stereotypes, social practices, and cultural norms in Mexico constitutes “a cause and a consequence of gender-based violence against women.”[60] Therefore, by showcasing the prevalence of obstetric violence in Mexico and the impact of cultural factors due to traditional gender roles, societal expectations, and historical influences, shows how complex the obstetric violence landscape is. Understanding the contemporary practices of obstetric violence in Mexico sets the stage for a deeper exploration of how cultural factors contribute to this issue’s persistence.
II. Understanding the Laws Surrounding Obstetric Violence
To identify potential solutions that can bridge the gap between international norms and cultural realities, we must consider Mexico’s legal response to obstetric violence. Part II (a) provides an overview of the binding Interamerican Jurisprudence, while Part II(b) analyzes Mexico´s Laws Concerning Obstetric Violence.
a. Interamerican Jurisprudence
While the binding Interamerican jurisprudence emphasizes the rights of women during childbirth, informed consent, and respectful maternity care, Mexico’s cultural landscape sometimes prioritizes traditional practices over these principles.[61] This situation creates a dissonance, raising questions about the adaptability of international jurisprudence within diverse cultural contexts, especially in healthcare systems.[62]
In the context of international human rights law, obstetric violence is considered a breach of fundamental rights, including the right to life, health, freedom from discrimination in healthcare, and access to information.[63] The Inter-American Court of Human Rights (IA Court) has addressed this issue, notably in the case of Brítez Arce and others v. Argentina,[64] where it was recognized as a form of gender-based violence under Article 7 of the Belém do Pará Convention.[65] The case specifically highlights the heightened vulnerability of pregnant women to such violence.[66]
This was also analyzed in the Manuela case where the IA Court studied the situation of Manuela, a Salvadoran woman who, in 2008, faced a health decline and a complex pregnancy.[67] This led her to being detained and held in pretrial detention for the crime of homicide.[68] The legal process was tainted by gender stereotypes and led the court to find El Salvador internationally responsible for violating her rights, emphasizing that Manuela was a victim of structural discrimination, that placed her in a situation of special vulnerability.[69] This ruling set important standards for handling obstetric emergencies and confronting gender stereotypes, marking a significant advance in international human rights.[70]
Additionally, obstetric violence has a more profound impact on individuals in conditions of vulnerability. In the Advisory Opinion 29/22, the IA Court analyzed the effects of obstetric violence on incarcerated women and pregnant individuals.[71] It notes that women represent a portion between 2% and 9% of the incarcerated population[72], with most being imprisoned for non-violent crimes related to poverty, violence,[73] and cultural stereotypes around the criminalization of abortion. In Mexico, for example, over 12,400 women are incarcerated and deprived of their liberty, with more than half of them awaiting trial[74] due to criminal policies lacking a gender perspective that takes into account the differentiated needs of women.[75] The lack of gender-sensitive policies subjects incarcerated women to heightened risks of abuse and exploitation in mixed prisons, while socioeconomic disadvantages prevent them from affording bail, trapping them in a cycle of violence and poverty.[76]
This was noted in another case by the IA Court, I.V. v. Bolivia, where the Court referred to the asymmetry of power between doctors and their patients. [77] Where Mrs. I.V., a Bolivian woman, was sterilized permanently without her informed consent. And, in the exercise of power by the doctor, the IACtHR warned that it creates an atmosphere of impunity, thereby sending a message that violence against women can be tolerated and accepted.[78] In its judgment, the Court affirmed the right to access reproductive health services as a means of exercising reproductive autonomy. It emphasized that “the lack of legal safeguards to consider reproductive health can result in a serious impairment of reproductive autonomy and freedom.”[79]
Likewise, the Poblete Vilches and Cuscul Pivaral cases highlighted the Interamerican standards on the direct enforceability of the right to health. The cases detailed how, according to article 26 of the IA Court, the State must progressively implement health services that are available, accessible, acceptable, and of sufficient quality.[80] These cases underscore the binding nature of the availability of medical services and establish that States bear responsibility for the actions of both public and private health care providers.[81]
In a pivotal ruling in November 2023, the IA Court condemned Venezuela for violations of the rights of Balbina Francisca Rodríguez Pacheco, who experienced obstetric violence in a private hospital in 1998.[82] Mrs. Rodríguez Pacheco experienced severe complications during a cesarean section, leading to long-term health problems.[83] Despite her suffering, legal proceedings were dismissed, and authorities neglected to investigate.[84] Eventually, the systemic failures in ensuring justice and protection for victims of medical malpractice were addressed by the IACtHR. The IACtHR determined that, in cases where a woman alleges being a victim of obstetric violence by private actors, States have the obligation to establish “timely, appropriate, and effective reporting mechanisms that recognize such obstetric violence as a form of violence against women.”[85] Moreover, “the perpetrators of such violence, and provide the victim with effective compensation, damage repair, or other fair and effective means of compensation.”[86] Fortunately for the victims in Mexico, the jurisprudence of the IACtHR is binding for Mexico and places a significant responsibility on the State. This includes the obligation to “prevent third parties from committing acts of obstetric violence” and to “regulate and supervise all health care.”[87]
b. Mexico´s Laws Concerning Obstetric Violence
The right to health is established in Article 4 of the Mexican Constitution and the General Health Law.[88] Additionally, in Mexico, all individuals are entitled to the human rights granted by the Constitution and the international treaties signed by the Mexican State.[89] Therefore, the right to health is also recognized by Articles 25.1 of the Universal Declaration of Human Rights,[90] 12 of the International Covenant on Economic, Social, and Cultural Rights,[91] and 10 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights.[92] Specifically, in the context of reproductive rights, the Mexican Constitution (Article 4, second paragraph) asserts that: “every person has the right to decide freely, responsibly, and informedly about the number and spacing of their children,”[93] emphasizing the importance of personal autonomy in family planning decisions.
In addition, the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) establishes the obligation of states to eliminate discrimination against women. Article 10(h) calls for access to information contributing to family health and well-being, including family planning and counseling.[94] Furthermore, Article 12 mandates states to eliminate discrimination against women, specifically in healthcare and with special emphasis on family planning services.[95] Finally, states have an obligation to ensure that there is no discrimination in the exercise of the right to decide freely and responsibly on the number of children and the spacing between births and to have access to this right.[96]
Similarly, Article 1 of the Inter-American Convention on Preventing, Punishing, and Eradicating Violence against Women (“Belem do Para”) defines what constitutes violence against women as: “any action or conduct, based on gender, that causes death, physical, sexual, or psychological harm or suffering to women, both in the public and private spheres”.[97] And Article 9 recognizes the particular situation of vulnerability of pregnant women.[98]
In addition, the United Nations Committee on Economic, Social, and Cultural Rights, in its General Comment 14, emphasized that the right to health includes control over one’s health and body, particularly sexual and reproductive freedom. Moreover, paragraph 2(a) of Article 12 of the International Covenant on Economic, Social, and Cultural Rights should be interpreted to mean that measures should be taken to improve child and maternal health, sexual and reproductive health services, including access to family planning, pre and postnatal care, emergency obstetric services, and access to information.
Nevertheless, in the current local state context, only 7 out of 32 states in Mexico have formally recognized and defined obstetric violence with associated consequences.[99] Many people remain unaware of the problem of obstetric violence, leaving most women who experience this form of gender-based violence without the necessary resources or information to protect themselves. The Supreme Court of Mexico recognized this gap in their ruling on a constitutional amparo claim, “Amparo en Revisión 1064/2019,”[100] where a woman was granted an “Amparo” human rights claim for non-consensual sterilization during a cesarean section procedure at a hospital of the Mexican Social Security Institute (IMSS). The Court identified this as gender-based violence and an act of torture, because medical personnel acted based on gender stereotypes.[101]
Accordingly, the decision to sterilize her without her authorization diminished her decision-making capacity regarding her own body.[102] Additionally, they concluded that the complainant was a victim of institutional obstetric violence as a form of gender-based violence expressed through dehumanizing practices in the public health sphere, specifically in reproductive health, affecting women’s autonomy, freedom, and ability to decide freely about their bodies and sexuality.[103]
However, despite the Mexican laws and jurisprudence fighting against obstetric violence, the implementation of such laws within Mexican society encounters cultural challenges. Traditional gender roles, uneven power dynamics in healthcare settings, insufficient education on reproductive rights, and societal reluctance to question established practices all contribute to the normalization and continuation of this form of gender-based violence. What potential solutions could be envisioned to address these challenges?
III. Potential Solutions for Reducing Obstetric Violence in Cultural Contexts
Considering the challenges presented by cultural factors, exploring new viable solutions becomes essential to mitigate obstetric violence and its consequences. In this sense, Part III (a) presents general solutions for the cultural issue of obstetric violence; and Part III (b) approaches public policy solutions for this phenomenon.
a. General Solutions for the Cultural Issue of Obstetric Violence
In Mexico, there is a big gap between the rules on paper and what is happening regarding violence against women.[104] 66.1 percent of women have reported experiencing violence in their lifetime.[105] To fix this problem, we need to actively involve people participating in shaping, implementing, and evaluating public policies to make sure human rights, especially the rights to health, are fully respected.
Thus, education is the first urgent action which can address obstetric violence. Finding common ground between cultural values and international standards, — like the Inter-American jurisprudence–, is crucial for addressing obstetric violence in Mexico. Education and awareness campaigns for doctors, explaining what obstetric violence is in the medical sphere is essential. We must spread information to medical personnel regarding gender-based stereotypes, by educating the medical personnel on intersectionality and obstetric violence we can help challenge harmful practices. Therefore, educating and engaging healthcare professionals, communities, and policymakers can help dialogue and facilitate a more inclusive approach to combating obstetric violence and break down cultural stereotypes.
Notably, there is currently no established legal procedures to address obstetric violence. It remains a significant national problem, which is persistently overlooked by existing legislation, the healthcare system, and society at large. Exploring solutions like reforming the law, and clarifying the typification and legislation of obstetric violence, its consequences and remedy is vital. Also, participation and consultations with NGOs or civil society organizations that address Violence Against Women could help address the phenomenon of obstetric violence.
In conjunction, the State must recognize patterns of intersectional and structural discrimination to develop proactive strategies through the implementation of policies that address the underlying causes. The State holds a specific responsibility to uphold the presumption of innocence and the right to defense in cases where various intersecting forms of discrimination come together within a context of structural bias against women.
b. Public Policy Solutions for the Problem of Obstetric Violence
Moreover, to address potential human rights violations associated with obstetric violence, it is imperative to institute a comprehensive national public policy. When the Inter-American Commission (IA Comission) referred the Balbina case to the IACHR, it suggested some points for the suggested public policy that should be seriously taken into consideration.[106] First, the policy should prioritize the implementation of means of reparation for victims, encompassing both material and immaterial dimensions.[107] It ought to include provisions for economic compensation and satisfaction, recognizing the potential impact on affected individuals’ life trajectories. Secondly, the IACHR suggests that policy must ensure accessible physical and mental health care with a gendered perspective, in accordance with the Interamerican Jurisprudence, encompassing the provision of necessary medicines and services. Efforts should be directed toward effective investigations and timely punishment of justice operators involved in undue delays in criminal proceedings, safeguarding access to justice.[108] Thirdly, the IACHR indicated that the development programs for prevention and policies within the justice system and medical associations should align with established international standards.[109] The implementation of training programs on health and human rights, integrating a gendered perspective, for healthcare and judicial personnel at the national level is indispensable to uphold women’s rights.[110]
In another way, the IA Commission also suggested interesting public policy ideas in the Manuela case, that might bring some clarity in how to address the cultural phenomenon of obstetric violence:[111] It suggested that measures should be taken to decriminalize and avoid pretrial detention for the cases of obstetric emergencies or situations that are criminalized due to stereotypes surrounding abortion. [112] One way would be to implement a comprehensive training and awareness initiative targeting both judicial professionals and healthcare personnel across national medical facilities. [113] On the other hand, in the context of judicial officials, the State is encouraged to establish continuous educational programs for doctors that focus on individuals participating in legal processes involving women accused of offenses related to abortion or infanticide.[114]
According to the IACHR, these programs should emphasize the potential of discriminatory presumptions and gender stereotypes during investigations and legal proceedings.[115] Additionally, they should address how the credibility and consideration of opinions, arguments, and testimonies from women, serving as both parties and witnesses, are handled.[116] The aim would be to mitigate the impact of inflexible norms (stereotypes) that may influence judgments regarding what is deemed acceptable behavior for women.[117] In this way, the approach seeks to ensure fair and unbiased legal proceedings in cases of obstetric violence.[118] Lastly, the IACHR considered that States should design and implement specific content on sexuality and reproduction within school programs.[119] This content should be comprehensive, non-discriminatory, evidence-based, scientifically rigorous, and age-appropriate.[120] Finally, it is necessary for States to immediately take the necessary measures to ensure comprehensive medical care for women experiencing obstetric emergencies.[121]
Taking all the above-mentioned recommendations, considering that Obstetric violence is primarily perpetuated by medical staff and doctors, it is important to create educational models and comprehensive educational programs targeting obstetricians, medical staff and anesthesiologists across Mexico. These programs should effectively combine theoretical knowledge with practice methodologies to enhance the management of obstetric emergencies. The training content should be gender-sensitive, have a focus on reducing maternal mortality, and be particularly sensitive to violence against women. Therefore, a change in public policy must address the importance of education, legislative reform, and comprehensive public policies to bridge the gap between global standards and cultural traditions, to create lasting change.
IV. Conclusion
In conclusion, understanding how obstetric violence in Mexico is deeply rooted in cultural factors is essential to grasping the root of the issue. It must be recognized as a cultural phenomenon to bridge the gap between the normative framework and practice. Prioritizing concrete actions and public policies around education and awareness is vital. Campaigns should be tailored to local cultural values to combat the issue at its root. Moreover, clarity on established procedures to address obstetric violence is necessary, as there is currently little clarity on legal actions to take against this form of violence. Legislative reforms and inclusive policy implementation are needed to recognize and address obstetric violence as a form of structural discrimination.[122] It’s crucial to develop a comprehensive national public policy ensuring victim reparations, access to gender-sensitive healthcare, and ongoing training for healthcare professionals and the judicial system.[123]
Hence, the necessity of a multidimensional approach combining cultural awareness, legal reform, and the implementation of inclusive public policies to combat obstetric violence in Mexico. Concrete measures must be established to protect women’s rights and address the root causes of obstetric violence. Only through a comprehensive and collaborative approach can progress be made towards an obstetric care system that respects human rights and ensures the safety and well-being of all women during childbirth.
[1] ‘Cállese y puje’, ecos de la violencia obstétrica en México, Reporte Índigo, https://www.reporteindigo.com/reporte/callese-y-puje-ecos-de-la-violencia-obstetrica-en-mexico/.
[2] Id.
[3] Parir en oscuridad. Violencia obstétrica: Una violación a los derechos humanos de las mujeres, https://www.scjn.gob.mx/sites/default/files/igualdad-genero/2019-11/1er_LUGAR_ENSAYO_639_parir-en-oscuridad.pdf.
[4] ‘Cállese y puje’, ecos de la violencia obstétrica en México, Reporte Índigo’, supra note 1.
[5] GIRE, Obstetric Violence: A Human Rights Approach (2015), https://gire.org.mx/wp-2 content/uploads/2019/11/informeviolenciaobstetrica2015.pdf; See also GIRE, Zero Impunity, 23.
[6] Id.
[7] Id at 23.
[8] Comm. on the Elimination of Discrimination Against Women on Its Eleventh Session, U.N. CEDAW General Recommendations No. 19: Violence against women (1992) (“1. Gender-based violence is a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men.”).
[9] Roberto Castro and Sonia M. Frías, Obstetric Violence in Mexico: Results From a 2016 National Household Survey, sagepub.com, DOI: 10.1177/1077801219836.
[10] On the one hand, after WWII, Universalism emerged and built the IHR regime under the belief that “[a]ll human beings are born free and equal in dignity and rights” (Universal Declaration of Human Rights), just because they are human. And, on the other hand, cultural relativists have maintained that different cultures “have different definitions on what constitutes a human right.” In other words, while Universalists rely on a “one size fits all” list of obligations binding everywhere, Cultural Relativists believe that “human rights vary from culture to culture.” They argue that specific cultural differences “cannot be reconciled”, and that “different cultures have different definitions of what constitutes a human right”. See The Belgrade Circle Journal, The Politics of Human Rights (1999); Elene G. Mountis, Cultural Relativity and Universalism: Reevaluating Gender Rights in a Multicultural Context, 15 Penn State Int’ L. Rev. 113, 113-150 (1996)http://elibrary.law.psu.edu/psilr/vol15/iss1/3; Itván Lakatos, Thoughts on Universalism versus Cultural Relativism, with Special Attention to Women’s Rights, Pécs Journal of Int’l and European Law (2018).
[11] Bret L. Billet, Cultural Relativism in the Face of the West: The Plight of Women and Children 1-18 (Palgrave Macmillan eds., 2007) (“virtually every society to be ‘distinct’ from others. The chief implication arising from this is that while some human rights may be applicable to perhaps a few societies, there can never be a universal human right that is uniformly applicable to people worldwide . . . Many maintain that the introduction of such ‘universal’ concepts, which are in reality not universal at all, . . . Adherents to cultural relativism claim that the rich variety of practices among different cultures does not make the uniform application of universal human rights feasible.”).
[12] Biermann, M.C., Farias, M.G., Patriarchy and Feminist Perspectives, in Encyclopedia of Evolutionary Psychological Science 5812, 17 (Cham: Springer International Publishing eds., 2021) (Patriarchy is “A system of gender-based hierarchy in which men hold primary power. Feminist perspectives are related to the feminist movement based on the social, political, and economic equality of the sexes. . . . Patriarchy is an example of a hierarchical social system in which power is held by men based on male dominance in social, legal, religious, economic, and political organization”).
[13] The term “misogyny” is derived from the Ancient Greek word “mīsoguníā” which means hatred towards women. Misogyny has taken shape in multiple forms such as male privilege, patriarchy, gender discrimination, sexual harassment, belittling of women, violence against women, and sexual objectification. Cheris Kramarae & Dale Spender, Routledge International Encyclopedia of Women 1374–77 (2000).
[14] U.N. CEDAW General Recommendations, supra note 8.
[15] General Recommendation 19 defines discrimination against women as: “6. The Convention in article 1 defines discrimination against women. The definition of discrimination includes gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. Gender-based violence may breach specific provisions of the Convention, regardless of whether those provisions expressly mention violence.” Committee on the Elimination of Discrimination Against Women, General Recommendation 19, Violence Against Women (Eleventh session, 1992), UN Doc. A/47/38 (1992).
[16] M. E. Harrison, Female physicians in Mexico: migration and mobility in the lifecourse, 47 Soc. Sci. Med. 455 (1998).
[17] GIRE, supra note 1.
[18] Id.
[19] Id.
[20] Id.
[21] Brítez Arce y Otros v. Argentina, Merits, Reparations, and Costs, Judgment, Inter-Ame. Ct. H.R. (ser. C) 75 & 81 (Nov. 16, 2022).
[22] Id at 81.
[23] Fernández Guillén, M., Violencia Obstétrica: Una Forma de Violencia de Género en la Atención Sanitaria, Revista Española de Derecho Sanitario, 89-104 (2017).
[24] Id.
[25] ENDIREH, The National Survey on the Dynamics of Relationships in Households (INEGI. Encuesta Nacional sobre la Dinámica de las Relaciones en los Hogares) (2021).
[26] Id.
[27] World Health Organization (WHO), Maternal Mortality: Helping Women Off The Road To Death, 40 WHO Chronicle 177 (1986).; See also Office of the High Commissioner for Human Rights, Technical Guidance On Applying A Human Rights-Based Approach To The Implementation Of Policies And Programs Aimed At Reducing Preventable Maternal Mortality And Morbidity, U.N. Doc. A/HRC/21/22 (July 2, 2022).
[28] Committee on the Elimination of Discrimination Against Women, Concluding observations on the ninth periodic report of Mexico, UN Doc. CEDAW/C/MEX/CO/9, 41 (July 25 2018).
[29] Id.
[30] Id at 42.
[31] CEDAW Committee, Mexico’s 9th Periodic Report, Alternative Report on the Reproductive Rights of Mexican Girls, (July 2018); Adolescents and Women, Grupo de Información en Reproducción Elegida, AC (GIRE).
[32] Regina Tamés, Mexico’s Supreme Court Orders Federal Decriminalization of Abortion Next Steps Include Ensuring Access, Human Rights Watch (Sep. 8, 2023), https://www.hrw.org/news/2023/09/08/mexicos-supreme-court-orders-federal-decriminalization-abortion. See also Gabriella Borter, Mexico has decriminalized abortion, but politics could decide access, Reuters (Sept. 8, 2023 12:54 PM), https://www.reuters.com/world/americas/mexico-has-decriminalized-abortion-nationwide-access-remains-elusive-2023-09-08/#:~:text=The%20ruling%20set%20a%20significant,seekers%20fleeing%20more%20restrictive%20laws.
[33] Margena de la O & Amapola Periodismo, Aurelia, la indígena que pasó mil 140 días presa por una emergencia obstétrica, Pie de Página (March 14, 2023), https://piedepagina.mx/aurelia-la-indigena-que-paso-mil-140-dias-presa-por-una-emergencia-obstetrica/#:~:text=Mujeres%20y%20feminismos-,Aurelia%2C%20la%20ind%C3%ADgena%20que%20pas%C3%B3%20mil%20140,presa%20por%20una%20emergencia%20obst%C3%A9trica&text=Tras%20el%20acompa%C3%B1amiento%20pol%C3%ADtico%20y,libertad%20en%20diciembre%20de%202022.
[34] Id.
[35] See id.
[36] Id.
[37] See Mounia El Kotni, Between Cut and Consent: Indigenous Women’s Experiences of Obstetric Violence in Mexico, 40 American Indian Culture and Rsch. J. 21 (2018).
[38] Id.
[39] Id at 32.
[40] Id.
[41] Ines de la Morena, Machismo, Femicides, and Child’s Play: Gender Violence in Mexico, Harv. Int’l Rev. (May 19, 2020), https://hir.harvard.edu/gender-violence-in-mexico-machismo-femicides-and-childs-play/.
[42] Id.
[43] Id.
[44] See Kramarae & Spender, supra 13 at 1374-7 (”The term ’misogyny’ is derived from the Ancient Geek word “mīsoguníā” which means hatred towards women. Misogyny has taken shape in multiple forms such as male privilege, patriarchy, gender discrimination, sexual harassment, belittling of women, violence against women, and sexual objectification.”).
[45] See Ríos et al. v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 194, ¶ 138 (Jan 28, 2009). See also Case Perozo et al. v. Venezuela, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 195, ¶ 157 (Jan. 28, 2009). See also Violence against Lesbian, Gay, Bisexual, Trans, and Intersex Persons in the Americas, Advisory Opinion OAS/V/II.rev.2, Inter-Am. Ct. H.R. (ser. L) No. 36, ¶ 242 (Nov. 12, 2015) (arguing that public officials should promote a discourse that prevents discriminatory violence, fostering a climate of tolerance and respect, refraining from statements that heighten the risk for specific groups. Although an official discourse might not directly authorize or incite violence, its content can render potential victims more vulnerable to both the State and certain societal sectors).
[46] The European Court of Human Rights held in Opuz vs. Turkey that the state’s failure to protect women from domestic violence through judicial means, or in their access to justice, violates their right to equal protection of the law, even if unintentional, constituting gender-based discrimination. (Case C-33401/02, Opuz v. Turkey, 2009 E.C.R. ¶¶ 180, 191 & 200. (June 9, 2009).
[47] See González and Others (“Campo Algodonero”) v. Mexico, Preliminary Objection, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 205, ¶ 401 (Nov. 16, 2009) (recognizing the existence of descriptive and prescriptive stereotypes when it stated that a gender stereotype is “a preconception of attributes or characteristics possessed or roles that are or should be performed by men and women respectively”).
[48] Emanuela Cardoso Onofre de Alencar, Mujeres y estereotipos de género en la jurisprudencia de la Corte Interamericana de Derechos Humanos, 9 Eunomía. Revista en Cultura de la Legalidad 26, 26-48 (2015–2016).
[49] INEGI, Información sobre diversidad, https://cuentame.inegi.org.mx/monografias/informacion/mex/poblacion/diversidad.aspx?tema=me&e=15#:~:text=78%20%25%20de%20la%20poblaci%C3%B3n%20es%20cat%C3%B3lica.
[50] Annik M. Sorhaindo et al., Qualitative evidence on abortion stigma from Mexico City and five states in Mexico, 54 Women Health 622, 622–40 (2014).
[51] Id.
[52] Biomedical Model of Health, OxfordReference.com, https://www.oxfordreference.com/display/10.1093/acref/9780191828621.001.0001/acref-9780191828621-e-5075) (“a model of health which focuses on purely biological factors and excludes psychological, environmental, and social influences. It is considered to be the leading modern way for healthcare professionals to diagnose and treat a condition in most Western countries.”)
[53] Law iniciative of Mexico City, named “Iniciativa con proyecto de decreto por el que se deroga el artículo 151 bis y se adiciona un Capítulo Tercero al Título Segundo “Delitos contra la libertad Reproductiva” del Código Penal para Distrito Federal, se adicionan diversas disposiciones a los artículos 206 bis, 206 ter, 206 quarter y 206 quinquies del Código Penal para el Distrito Federal, se adicionan los incisos f) y g) a la fracción VII del artículo 6, y se adicionan diversas disposiciones a las fracciones VI y VII de la Ley de Acceso de las Mujeres a una Vida Libre de Violencia de la Ciudad de México”, https://www.congresocdmx.gob.mx/media/documentos/cc092924ec536692fa4e70721acd13da055e08a7.pdf
[54] Meghan A. Bohren et al.,The Mistreatment of Women during Childbirth in Health Facilities Globally: A Mixed-Methods Systematic Review, 12PLoS Med. 1, 2 (2015).
[55] Adrienne Rich, Of Woman Born: Motherhood as Experience and Institution (1976); Emily Martin, The Woman in the Body: A Cultural Analysis of Reproduction (2001).
[56] Id.
[57] Id.
[58] Impunity refers to the “freedom from punishment, harm, or loss”, Encyc. Britannica, https://www.britannica.com/dictionary/impunity#:~:text=%3A%20freedom%20from%20punishment%2C%20harm%2C,in%20the%20phrase%20with%20impunity.
[59] Veronica Esparza et al., Justicia Olvidada, Violencia e impunidad en la salud reproductiva, GIRE Impunidad Cero, https://gire.org.mx/publicaciones/justicia-olvidada-violencia-e-impunidad-en-la-salud-reproductiva/.
[60] The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Belém do Pará Convention, Inter-American Commission on Human Rights (CIDH), Violence and Discrimination Against Women, Girls, and Adolescents: Good Practices and Challenges in Latin America and the Caribbean, OAS/Ser.L/V/II. Doc. 233, November 14, 2019, para. 182. Inter-American Commission on Human Rights (CIDH), Women facing violence and discrimination resulting from the armed conflict in Colombia, OAS/Ser.L/V/II. Doc. 67 (2006), para. 43. Inter-American Commission on Human Rights (CIDH), Report on Poverty and Human Rights in the Americas, OAS/Ser.L/V/II.164. Doc. 147 (2017), para. 187. Inter-American Court of Human Rights (Corte IDH), Case González and Others (“Campo Algodonero”) Vs. Mexico, Preliminary Objection, Merits, Reparations, and Costs, Judgment of November 16, 2009, Series C No. 205, para. 401.
[61] I.V. v. Bolivia, (Merits, Reparations, and Costs, Inter-Am. Ct. H.R (Nov. 30, 2016); Beatriz v. El Salvador, Case 13.248, Inter-Am. Comm’n H.R. Report No. 136/21 (2021); Manuela and Family v. El Salvador, Case No. 13.069, Inter-Am. Comm’n H.R., Report No. 153/18 (2018); Brisa Angulo v. Bolivia, Case No. 13.581, Inter-Am. Comm’n H.R., Report No. 327/21 (2021); Britez Arce v. Argentina, Preliminary Objections, Merits, Reparations, and Costs, Inter-Am. Ct. H.R. (Nov. 24, 2023).
[62] Id.
[63] Britez Arce and Others v. Argentina, Judgement, Inter-Am. Ct. H.R. (ser. C), No. 22, ¶ 75 (Nov. 16, 2022) (concluding that this violence violates the: (i) right to health under Article 26 of the American Convention on Human Rights (ACHR), in conjunction with Article 1.1; (ii) right to life as per Article 4.1 of the ACHR, in conjunction with Article 1.1; and (iii) right to personal integrity under Article 5.1 of the ACHR, also in conjunction with Article 1.1.).
[64] See id at ¶ 75.
[65] Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women, Belem do Parà Convention, June 9, 1994, Inter-Am. Ct. H.R. 33 I.L.M 1534 (“Every woman has the right to a life free of violence. Violence against women shall be understood to include physical, sexual, and psychological violence occurring in the family or domestic unit, as well as any form of violence against women within the general community. This shall include, but is not limited to, the following: a) physical, sexual, and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation, and other traditional practices harmful to women; b) physical, sexual, and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment, and intimidation at work, in educational institutions, and elsewhere; c) trafficking in women; d) forced prostitution; and e) violence perpetrated or condoned by the state or its agents, regardless of where it occurs”)
[66] Id.
[67] Manuela and Others v. El Salvador, Inter-Am. Ct. H.R., Judgment of Nov. 2, 2021, Prelim. Obj., Merits, Reparations, and Costs.
[68] Id.
[69] Id at ¶¶ 146, 173, 253.
[70] Id.
[71] Advisory Opinion OC-29/22, Differentiated Approaches Regarding Certain Groups of Persons Deprived of Liberty, Inter-Am. Ct. H. R., May 30, 2022, at 48.
[72] Id.
[73] Miranda Carballo Corrales, Prison: Where Gender Gaps Increase, NEXOS (Aug. 11, 2022), https://anticorrupcion.nexos.com.mx/la-prision-donde-las-brechas-de-genero-aumentan/.
[74] Id.
[75] Id.
[76] Id.
[77] I.V. v. Bolivia, Preliminary Objections, Merits, Reparations, Costs, Judgment, Inter-Am. Ct. H.R. (Nov. 30, 2016).
[78] Id at ¶ 317.
[79] Human Rights Committee, General Comment No. 36. Article 6: Right to Life, para. 8.
[80] Poblete Vilches and Others v. Chile, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R., 121-139 (March 8, 2018); Cuscul Pivaral and others vs. Guatemala, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R., 106-107 (Aug. 23, 2018).
[81] See id at 119. See also Ximenes Lopes v. Brazil, Preliminary Objection, Judgment, Inter-Am. Ct. H.R. ¶ 89 (July 4, 2006).
[82] Rodríguez Pacheco v. Venezuela, Judgment, Inter-Am. Ct. H.R. (Sept. 1, 2023).
[83] Id.
[84] Id.
[85] Id at 107.
[86] Id at 112.
[87] Id at 112.
[88] Constitución Política de los Estados Unidos Mexicanos (Mex.) [Political Constitution of the United Mexican States], as amended, Diario Oficial de la Federación [DOF], Art. 4 (Feb. 5, 1917); Diario Oficial de la Federación [DOF] (Feb. 7, 1984).
[89] Constitución Política de los Estados Unidos Mexicanos [Political Constitution of the United Mexican States], as amended, Diario Oficial de la Federación [DOF], art. 1 and 133 (Feb. 5, 1917) (Mex.).
[90] Article 25.1 of the Universal Declaration of Human Rights.
[91] Article 12 of the International Covenant on Economic, Social, and Cultural Rights.
[92] Article 10 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights.
[93] See Political Constitution of the United Mexican States Oct. 8, 2013, art. 4 (Mex.).
[94] Article 10(h) Convention on the Elimination of All Forms of Discrimination Against Women.
[95] Id at art. 12.
[96] Id at art. 16.
[97] Supra note 54 at art. 1.
[98] Id at art. 9.
[99] Supra note 50.
[100] First Chamber of the Supreme Court of Mexico, Amparo en Revisión 1064/2019.
[101] Id.
[102] Id.
[103] Id.
[104] How Prevalent is Gender-Based Violence?, Wilson Center, https://gbv.wilsoncenter.org/explore-gbv-data#:~:text=GBV%20in%20Mexico,signs%20of%20torture%20or%20beatings.
[105] Id.
[106] IAHR, Press release, La CIDH presenta caso sobre Venezuela ante la Corte Interamericana [The IACHR presents a case on Venezuela before the Inter-American Court] (March 31, 2021) https://www.oas.org/pt/CIDH/jsForm/?File=/es/cidh/prensa/comunicados/2021/081.asp.
[107] In the Balbina Case, the Court established that its Judgment constitutes, by itself, a form of reparation and, additionally, ordered the State, within the deadlines set in the judgment: (i) within a reasonable time, to investigate, through competent public institutions, the officials accused of irregularities and, after due process, to apply the corresponding administrative, disciplinary, or criminal sanctions to those found responsible; (ii) to pay the amounts set forth in this Judgment for rehabilitation; (iii) to publish the official summary of the Judgment prepared by the Court in the Official Gazette and in a widely circulated national media in a legible and adequate font size; (iv) to publish this Judgment on an official website of the Supreme Court of Justice of the Bolivarian Republic of Venezuela and of the Ministry of Popular Power for Health, accessible to the public and from the homepage of the website; (v) to adopt the necessary measures for the organs of the Judiciary and the Public Ministry to develop training programs in the investigation of possible cases of obstetric violence, taking into account the inter-American standards on the matter concerning due diligence and reasonable time, as well as from a gender perspective; (vi) to develop training and continuing education programs aimed at medical students and professionals, as well as all reproductive health care personnel, both in public and private health centers, on women’s maternal health rights and gender-based discrimination and stereotypes, as well as on the investigation and prevention of cases of obstetric violence, and (vii) to pay the amounts set forth in the judgment for material and immaterial damage, as well as for the reimbursement of costs and expenses.
[108] Supra note 86.
[109] Id.
[110] Id.
[111] See Manuela et al. v. El Salvador, Preliminary Objections, Merits, Reparations, and Costs, Inter-Am Ct. H.R. ¶ 282-300 (Nov. 2, 2021).
[112] Id.
[113] Id at ¶ 15.
[114] Id.
[115] Id at ¶ 293.
[116] Id.
[117] Id at ¶ 293.
[118] Id.
[119] Id at ¶ 297.
[120] Id.
[121] Id at ¶ 299.
[122] Id.
[123] See id.
I. Introduction
A boy stands outside Courtroom Number One of the Islamabad High Court. Surrounded by lawyers draped in black gowns and his grandparents, he cuts a cake.[1] Onlookers wish him a happy birthday.[2] He has just turned four.[3] The boy’s name is Sachal, and for the past three years, court visits have become a norm for him.[4] But where are Sachal’s parents? This simple question can strike fear in most Pakistanis’ hearts. Sachal’s father, Mudassar Naaru, is a journalist who went “missing” in August 2018 when he went on vacation to the Kaghan Valley in Northern Pakistan.[5] Fearing Naaru might have been a natural accident victim, his family tried to register a report with the police, who refused to cooperate.[6] Later, Naaru’s family learned that he was seen at a detention center for missing persons.[7]
And what about Sachal’s mother? Sachal’s mother, Sadaf, has campaigned for Naaru’s release since 2018.[8] From lobbying parliamentarians to holding protests or attending court hearings, Sadaf left no stone unturned to recover her husband alive. Sadly, this took a toll on Sadaf.[9] On Mother’s Day in 2021, she passed away in her sleep.[10] Even today, the four-year-old Sachal continues the struggle to safely recover his father.
The phenomenon of enforced disappearances, as seen in Naaru’s case, entails the abduction or detention of an individual by state authorities or their agents, occurring without acknowledgment or legal recourse.[11] The Naaru family’s story of separation and despair is not uncommon.[12] In fact, similar stories echo throughout Pakistan.[13] From March 2011 to October 2022, the Government of Pakistan’s Commission Of Inquiry On Enforced Disappearances (CoIED) has received 9,035 enforced disappearance cases.[14] But there is reason to doubt this number.[15] Manzoor Pashteen,[16] the leader of the Pashtun Tahaffuz Movement (Movement for the Protection of Pashtuns), has alleged that over 5,000 Pashtun community members alone have been subject to enforced disappearances.[17] Diverse voices spanning ethnic and religious communities, along with mainstream political parties, have raised similar allegations.[18] This article traces Pakistan’s practice of enforced disappearances and recommends approaches for the Pakistani authorities and the international community to address them in the future.
Section II will describe the historical context under which the practice of enforced disappearances emerged in Pakistan and how and why they continue today. Section III will look at provisions of the Pakistani Constitution, the Pakistani Penal Code, legislation, and case law to understand the protections afforded against enforced disappearance victims in Pakistan. Lastly, Section IV proposes strengthening domestic accountability through reforms in the Commission of Inquiry on Enforced Disappearances (CoIED) and domestic legislation.
II. Background
A. Defining Enforced Disappearances Under International Law
Different international legal instruments have their own definitions of what constitutes an enforced disappearance.[19] However, all definitions have four generally accepted elements.[20] First, there must be an arrest, detention, or abduction of a person(s).[21] Second, the arrest, detention, or abduction must be carried by or with the State’s authorization—or through people acting on the State’s behalf.[22] Third, there must be an intent to remove the arrested, detained, or abducted person from the ambit of the law for a long time. Fourth, there must be a denial of information from the State or its agents regarding the person or persons’ whereabouts.[23]
The 1992 Declaration on the Protection of All Persons From Enforced Disappearances (1992 Declaration) adds another dimension to the definition.[24] The declaration recognizes that enforced disappearances not only inflict suffering on its victims but also inflict suffering on their families.[25] It further states that the practice of enforced disappearances breaches fundamental rights, such as the right to recognition as a person before the law, the right to liberty and security of the person, and the right to freedom from torture and other cruel, inhuman, or degrading treatment or punishment.[26]
B. The Pakistani Military’s Role
Before exploring the practice of enforced disappearances in Pakistan and who to hold responsible for it, it is important to understand the Pakistani State’s structure. In 1947, India was carved up, and Pakistan gained its dominion status from British rule.[27] Pakistan then became a republic in 1956.[28] In 1958, the first ever martial law was imposed, and consequently, Pakistan remained a dictatorship until 1971.[29] After 1971, Pakistan enacted its third Constitution (1973 Constitution).[30] This Constitution remains in force today.[31]
Article 243 of the 1973 Constitution tasks the Federal Government with the control and command of the Armed Forces.[32] Pakistan’s President is vested with the Supreme Command of the Armed Forces.[33] While the Constitution envisaged a military subservient to the Federal Government, the situation on the ground is quite the contrary.[34] In Pakistan, it is actually the Pakistani Army that rules the country through direct coups or soft interventions.[35] Similarly, although Pakistan’s intelligence service, the Inter-Services Intelligence (ISI), is supposed to report to the Prime Minister, the ISI acts as the military’s second arm.[36] One reason for the ISI’s subservience to the military is that it has always been headed by a Pakistani Army general.[37] Thus, while the ISI reports to the Prime Minister, its Director General—a Pakistani Army general—is bound to follow the Pakistani Army’s chain of command.
The intertwining of military and intelligence structures in Pakistan profoundly affects enforced disappearances. The unchecked power of the Pakistani Army and the ISI’s alignment with military interests compromise accountability. Furthermore, the military’s overwhelming influence often compels the government to align its policies and actions with the army’s interests. The government, aware of the military’s considerable power, frequently finds itself toeing the line dictated by the army to maintain stability and political survival. This dynamic perpetuates a system where the military exerts disproportionate control over other state institutions.
C. The Historical Practice of Enforced Disappearances in Pakistan
Enforced disappearance practices in Pakistan can be traced back to as early as the 1970s.[38] In the 1970s, the Pakistani military engaged in a brutal civil war in East Pakistan (now Bangladesh).[39] During this conflict, many Bengali intellectuals were abducted, and their whereabouts remained unknown until their bodies were discovered.[40] A few years later, the Pakistani army helped suppress another insurgency in the Balochistan province.[41] This conflict also included enforced disappearances of political activists and leaders.[42]
After 9/11 occurred in the United States, Pakistan’s entry into the War on Terror allowed it to engage in enforced disappearances with new vigor.[43] Amnesty International estimates that Pakistani authorities kidnapped and handed over hundreds of individuals to the United States—or held the individuals in secret locations without any recourse to courts of law.[44] The Pakistani State acted with impunity, with former President General Musharraf later boasting that his government captured and handed over 369 suspected militants to the United States in exchange for multi-million-dollar bounties.[45] One notable case is that of Murat Kurnaz, who was apprehended by Pakistani authorities in October 2001 and subsequently transferred to US custody.[46] A memo from German intelligence authorities indicated that the US came to believe in his innocence.[47] However, it was not until 2006 that Kurnaz was finally released by US authorities following a District Court ruling citing insufficient evidence against him.[48]
D. Why Enforced Disappearances Continue Today
Over the past few decades, the Pakistani state has mastered the art of enforced disappearances.[49] For example, the Pakistani military widely used this practice to suppress the 2005 Baloch insurgency—and silence ethnic and minority groups that raised their voices to protest against different state policies.[50] The military defended itself by arguing that the issue of missing persons is overly exaggerated and is part of a “fifth-generation warfare” imposed on Pakistan by its regional adversaries.[51]
While the military could deny the practice of enforced disappearances in the past by controlling mainstream media, the advent of social media has changed the dynamics.[52] Social media has been used not only to run campaigns to highlight the military’s illegal practices but also to record videos of individuals associated with the military engaging in enforced disappearances.[53] While one would assume that social media would change the military’s modus operandi, the reverse has happened. Since early 2023, the military has engaged in a sustained campaign to abduct members and supporters of Pakistan Tehreek-e-Insaaf (PTI) – Pakistan’s most popular political party.[54] Journalists perceived as sympathetic to the party have been subjected to a harrowing series of events, including coercion into exile, illegal disappearances, torture, and tragic deaths.[55] The military has made no efforts to hide its involvement in PTI members’ disappearances. A video widely shared by the military’s proxies, targeting PTI members, features a scene where military vehicles are seen compelling someone to enter.[56] The accompanying caption states that “[t]he [military’s] black cars influence those who ride in them, guiding them toward the right path.”[57]
III. Enforced Disappearances and their Legality Under Pakistani Law
A. The Constitution
Pakistan’s Constitution guarantees the liberty of the people.[58] The Constitution’s first chapter (Articles 8 – 28) deals exclusively with fundamental rights.[59] Article 9 provides that no one will be deprived of life or liberty except in accordance with the law, while Article 10 extensively deals with safeguards to arrest and detention.[60] Pakistan’s courts consider these articles, along with other Chapter 1 articles, to be the most cherished and valuable fundamental rights guaranteed under the Constitution.[61]
Article 10(1) states that anyone who is arrested should be informed of the grounds of their arrest.[62] Further, Article 10(2) provides that a detained individual shall appear before a magistrate within twenty-four hours of their arrest, and no individualshall be detained beyond the said period without the magistrate’s consent.[63] In Human Rights Case No. 29388- K of 2013, the Supreme Court interpreted Article 10 to provide direct protection from enforced disappearances.[64] On their face, these provisions indicate that the practice of enforced disappearances is clearly unlawful and unconstitutional.
B. The Pakistani Penal Code
The Pakistani Penal Code 1860 (PPC) does not recognize enforced disappearances.[65] The PPC treats all enforced disappearance cases as kidnapping or abduction.[66] The PPC prescribes different types of punishments for different types of kidnappings and abductions.[67] These punishments range from life imprisonment for kidnapping with an intent to murder, up to seven years of imprisonment, and a fine for kidnapping or abducting with the intent to secretly and wrongfully confine an individual.[68]
While the PPC’s provisions provide a remedy for cases where there is abduction or kidnapping for ransom or personal vengeance—they do not address cases where disappearances take place with the state security apparatus’s acquiescence.[69]
C. Pakistani Case Law and Developments
Courts in Pakistan have made admirable, yet ultimately futile, attempts to address enforced disappearances.[70] The Supreme Court under Chief Justice Iftikhar Chaudhry tried to reign in these practices by exercising the Court’s suo motu powers under Article 184(3) of the Constitution.[71] The suo motu powers allow the Supreme Court to exercise its original jurisdiction and assume jurisdiction of matters involving questions of ‘public importance’ with reference to the “enforcement of any of the [f]undamental [r]ights” of the citizens.[72] Although the Chaudhry court tried its best to resolve these cases, it frequently encountered resistance from other organs of the state.[73]
For example, the Mohabbat Shah case starkly illustrates Pakistani security services’ involvement in enforced disappearances.[74] The case involved an application by Mohabbat Shah alleging that his brother (Yaseen Shah) had been missing since a joint operation had been conducted by law enforcement agencies against terrorists in the city of Mardan.[75] Mohabbat Shah claimed that his brother had been held at an internment center in the city of Malakand, but his family had not been allowed to see him.[76] The superintendent of the Malakand internment center admitted that sixty-six detainees had been brought to the center, and thirty-five of them (including Yaseen Shah) had later been removed from the center at the behest of the army. Despite repeated orders of the Supreme Court, only seven people out of the thirty-five were produced before the Court.[77] Perhaps the most striking criticism from the Court came when it termed the military’s workings as “Kafkaesque.”[78]
After Mohabbat Shah, the Supreme Court’s active role in enforced disappearance cases diminished. The explicit cause was the establishment of the Commission of Inquiry on Enforced Disappearances, exclusively tasked with such cases. The implicit reason, however, was that the military began controlling and exerting its influence on the judicial and political process.[79]
D. Attempts to and End Enforced Disappearances via the CoIED
In light of the increased reporting of cases concerning enforced disappearances, the Federal Government (on directions of the Supreme Court) constituted the CoIED pursuant to the Pakistan Commission of Inquiry Act 1956 (Inquiry Act).[80] The Inquiry Act allows the CoIED to exercise powers similar to those of a civil court.[81] The power to appoint members of the commission lies exclusively with the Federal Government.[82] Moreover, Article 8 provides flexibility to the commission to frame its own procedure and rules[83]
Presently, the CoIED consists of four members – three former judges and one former police officer.[84] The Chairman of the CoIED is Justice Javed Iqbal (a retired Supreme Court judge), who has served in this capacity since the inception of the CoIED.[85] Justice Iqbal’s tenure has not been without controversy.[86] Justice Iqbal’s commitment to his role is questionable, taking on an additional position as Chairman of the National Accountability Bureau (NAB).[87] He faced controversy in a video leak scandal, where inappropriate advances towards an individual named Tayyaba Gul were revealed.[88] In a parliamentary committee session, Gul narrated her ordeal and recounted how she had first come into contact with Justice Iqbal in a case related to a missing person.[89] Gul disclosed how Justice Iqbal obtained her mobile number from the petition she had filed with CoIED. She stated that Justice Iqbal persistently pursued her and threatened to destroy her life within minutes if she rejected his advances.[90] Despite calls for resignation, Justice Iqbal, allegedly supported by the military, continues to head the Commission.[91]
E. Legislative Attempts to Criminalize Enforced Disappearances
An attempt was made to criminalize enforced disappearances through an express Act. A bill was introduced in the National Assembly (lower house) that proposed amendments to the Pakistani Penal Code, 1860, and the Code of Criminal Procedure, 1898.[92] After the National Assembly passed the bill, it went “missing” when it went to the Senate (upper house) for review.[93] It was not until October 2022 that the National Assembly passed the bill for a second time titled the Criminal Laws (Amendment) Bill 2022 (2022 Bill).[94]
The 2022 Bill introduced a new section in the PPC (§ 52B) that defines an enforced disappearance.[95] As per this definition, an enforced disappearance occurs when there is “illegal[ly] and without lawful authority arrest, detention, abduction . . . by a public official followed by their refusal to acknowledge the deprivation of liberty . . . or whereabouts of the disappeared person, which places such a person outside the protection of the law.”[96]
Moreover, the 2022 Bill also inserted new sections (§§ 512, 513) in the PPC that provide the criminal elements of enforced disappearance while also proscribing penalties for it.[97] As per the 2022 Bill, a person(s) commits the crime of forcible or involuntary disappearance when they: “. . . illegally and without lawful authority” commit, order, solicit, or induce the commission of attempts to commit the forcible or involuntary disappearance of a person or group.[98] This definition also covers cases where a third party is an accomplice to another person’s enforced disappearance.[99] Lastly, the new § 513 proscribes a punishment that includes a prison sentence—which may extend to ten years—and a fine.[100]
The Bill also included another provision that stated that an individual could be punished with five years’ imprisonment if his or her complaint regarding a missing person was proven false.[101] However, recent reports indicate the government has decided to repeal this provision over concerns that it would prevent people from lodging a missing person complaint.[102] As of the writing of this article, the Bill still requires the Senate’s passage before becoming law.[103]
IV. Recommendations
A. Strengthening the CoIED
The CoIED has multiple defects that have rendered it completely futile for the purposes of tracing missing persons and holding state functionaries accountable. Although the CoIED can exercise powers equivalent to a civil court,[104] little or no evidence suggests that the CoIED uses these powers effectively. This is because all members of the CoIED have served as state employees at one time or another and, therefore, understand that going against the military can lead to serious repercussions for them and their families.[105]
The retention of Justice Iqbal as Chairman of the CoIED, even after the controversial video leak, shows that the military prefers the presence of compromised individuals in important posts.[106] Thus, CoIED’s member composition must be replaced with independent individuals with no conflicts of interest stemming from their current or previous state employment.
Therefore, members should be drawn from human rights activists, journalists, members of marginalized groups, and civil society members—since such individuals have felt the worst of the state’s excesses.[107] Not only have many faced enforced disappearances themselves, but they have an in-depth idea of how the system works. Such individuals can prevent state institutions from using delaying tactics when it comes to recovering a disappeared individual. Additionally, members should have a fixed term limit of three years without the possibility of an extension. As a result, the military will be unable to use the continuation of financial remuneration and other perks that a CoIED member is entitled to as leverage to influence members to do their bidding. Lastly, members of the CoIED should be prohibited from assuming any other governmental position during their tenure. This prohibition should continue to apply until at least three years after an individual has ceased to be a member. The controversy surrounding Justice Iqbal highlights the risks of holding dual roles as a CoIED member and Chairman of the NAB. His alleged involvement in a video leak scandal, where he made inappropriate advances towards Tayyaba Gul, calls into question his dedication to his duties and integrity. This dual role not only compromises CoIED’s integrity but also exposes its members to external pressures, such as blackmail by the military. Implementing strict regulations to prevent CoIED members from holding other governmental positions would safeguard its independence and effectiveness in addressing enforced disappearances, free from external influences.[108]
The National Assembly must also introduce a new provision to Article 3 of the Inquiry Act to change how CoIED members are appointed.[109] Presently, Article 3(2) of the Inquiry Act vests the federal government with total power to appoint members to a commission.[110] Since the Inquiry Act is a general piece of legislation used by the government to form commissions on a wide variety of issues, it would be imprudent to deprive the government of the power to appoint members in all situations. Hence, the National Assembly should insert a new provision called Article 3(3) – which will only come into effect when a commission formed pursuant to the Inquiry Act is investigating fundamental rights violations enshrined in the Constitution. Under this new provision, the government shall only appoint members to the commission from a pool consisting of human rights activists, journalists, members of marginalized groups, and civil society members. This provision will also make it obligatory for the government to seek public feedback on any potential commission appointee.
Article 8 of the Inquiry Act allows the commission to frame its rules and procedures.[111] Hence, the changes suggested above, such as conflict of interest disclosure and limitations to the tenure of members, can be brought into effect by simply amending the current rules and regulations that the CoIED has drafted for itself.[112]
The proposed inclusion of Article 3(3) to the Inquiry Act is bound to face certain obstacles. This is because any amendment to the Inquiry Act would have to be made via Parliament. Considering the military’s role in every sphere of Pakistan’s political landscape, it is predictable that the military would put pressure on political parties in Parliament to oppose such reform.[113] However, changes made to the regulations of the CoIED would be relatively easy to accomplish since such changes do not require any parliamentary intervention.
B. International Oversight of the CoIED
A permanent seat must be established on the CoIED for an international observer. There is nothing in the Inquiry Act or in the CoIED’s regulations that prevents such an appointment.[114] Since the Inquiry Act allows the CoIED to form its own regulations, the National Assembly can amend the CoIED’s regulations to allow for the presence of such an international observer.[115] The international observer must be affiliated with a reputed human rights organization such as the International Committee of the Red Cross (ICRC) or the United Nation’s Committee on Enforced Disappearances, and their role should be limited to simply observing the CoIED’s proceedings. At the end of a six-month period, the international observer would be obligated to publish a report with a focus on three main factors: 1) the number of cases filed with the CoIED, 2) the number of people recovered, and 3) an analysis on the co-operation of law-enforcement agencies with the CoIED.
Many human rights activists in Pakistan have doubted the creditability of the CoIED when it comes to reporting the number of forcibly disappeared individuals.[116] A report by an international observer focusing on factors 1 and 2 listed above will provide a credible picture of the on-the-ground situation in Pakistan—and will prevent Pakistani authorities from trivializing the issue of enforced disappearances in the country. Moreover, by focusing on factor 3, the report can help identify state institutions that pose a major impediment to the CoIED’s work. The release of this information is likely to exert both international and domestic pressure on Pakistani authorities, potentially compelling them to collaborate more willingly with the Commission of Inquiry on Enforced Disappearances (CoIED).
There are two main reasons why this paper proposes a limitation to the international observer’s role. First, such a limitation can more easily garner domestic support for this proposal. Even if there are any legal or statutory impediments to an international observer’s appointment, the government could use this support to pass any legislation necessary for the appointment. Second, the military previously expelled international human rights organizations from the country for allegedly infringing the country’s sovereignty.[117] Thus, a limitation on the independent observer’s role would prevent the military from converting a legitimate debate about its human rights violations to one about the infringement of Pakistan’s sovereignty.
C. Amendments in the Domestic Law
While the 2022 Bill is a big leap in modernizing the law regarding enforced disappearances, it is still not enough. Although the 1992 Declaration and Pakistani courts have recognized the effects that enforced disappearances can have on victims’ families, the 2022 Bill offers no such recognition.[118] For example, in Mahera Sajid v. Station House Officer, the courtawarded reparations to a disappeared individual’s family members.[119] Thus, the 2022 Bill should include a special provision that allows family members to claim compensation from the State for its actions. Since the compensation of PKR 117, 500 (518. 78 USD) per month awarded in the Mahera Sajid case[120] is too inadequate to act as a deterrent, this paper proposes that the bill should stipulate that courts cannot set compensation below PKR 1,000,000 (USD 4,904.86) per month.
This measure can compel state organizations to carefully reconsider before engaging in enforced disappearances. By establishing a minimum threshold, the bill seeks to enhance the effectiveness of compensation as a deterrent against such egregious actions. Although such compensation can never make families whole, it can act as a form of recognition for people who have been grossly wronged by the state. Furthermore, since victims’ families suffer life-long trauma due to their loved ones’ disappearances, the 2022 Bill should include a provision that makes it mandatory for the government to provide free, adequate mental health services to eligible individuals. In situations where the government cannot provide such services, it should cover the costs for families who decide to approach a private mental health service provider.
Including these provisions would not lead to a revolutionary change but would simply effectuate an explicit stipulation in Article 4 of the Constitution that “. . . no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.”[121]
V. Conclusion
The issue of enforced disappearances endures in Pakistan, spanning from the 1970s to the present day. The country’s legal framework—including its Constitution, Penal Code, and case law, presents further complexities surrounding enforced disappearances and possibilities for reform. Such reforms are necessary since Pakistan’s Commission of Inquiry on Enforced Disappearances (CoIED) has proven ineffective in addressing the issue.
Certain practical recommendations can address the epidemic of enforced disappearances in Pakistan. Such recommendations include strengthening the CoIED by proposing changes in its composition and advocating for the appointment of an international observer to provide oversight. Minor adjustments to expand the 2022 Bill’s scope can also meaningfully address the ongoing enforced disappearance epidemic. While these recommendations might not completely end the practice of enforced disappearances in Pakistan, these measures can reduce potential Sachals from celebrating their birthdays alone.
The Author, Momin bin Mohsin, has practical experience in three legal jurisdictions and holds both a JD and an LLB. He is currently pursuing an LLM specializing in International Dispute Resolution. His areas of interest include public international law, international human rights law, and international arbitration.
[1] Asif Naveed, Mudassar Naru Case: Missing person’s son marks 4th birthday at court appearance, Aaj News (Feb. 14, 2022, 12:35 PM), https://www.aaj.tv/news/30278557; Shiraz Hassan (@ShirazHassan), Twitter (Feb. 14, 2022, 12:57 AM), https://twitter.com/ShirazHassan/status/1493102153501753346?s=20&t=VMj2kowqBkIew91ZdOlCcQ.
[2] Naveed, supra note 1.
[3] Id.
[4] Imaan Zainab Mazari -Hazir, Mudassar Naaru Is Missing And His Family Has Been Torn Apart, Naya Daur (July 5, 2021), https://nayadaur.tv/2021/07/mudassar-naaru-is-missing-and-his-family-has-been-torn-apart/.
[5] See Saim Saeed, On ‘incidents’ and other euphuisms, Express Trib. (Nov. 27, 2013),https://tribune.com.pk/story/637921/on-incidents-and-other-euphemisms (the term “missing persons” is a euphuism used to denote individuals subject to enforced disappearances in Pakistan); Tahir Naseer, Mudassar Naaru case: Justice Minallah terms enforced disappearances ‘worst form of corruption’, DAWN News (Dec. 13, 2021),https://www.dawn.com/news/1663551.
[6] Naseer, supra note 5.
[7] Id.
[8] Abbas Nasir, No Eid for Sachal, Dawn News (May 16, 2021), https://www.dawn.com/news/1623870/no-eid-for-sachal.
[9] Activist Sadaf Chugtai found dead under mysterious circumstances, MN News (May 11, 2021), https://mmnews.tv/activist-sadaf-chughtai-found-dead-under-mysterious-circumstances/.
[10] Id.
[11] Declaration on the Protection of All Persons from Enforced Disappearance, art. 1, § 1, G.A. Res. 47/133, U.N. Doc. A/RES/47/133 (Dec. 18, 1992) [hereinafter 1992 Convention]; Rome Statute of the International Criminal Court, art. 7, § 2, cl. i, July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute]; International Convention for the Protection of All Persons from Enforced Disappearance, art. 2, G.A. Res. A/RES/61/177, U.N. Doc. A/HRC/RES/2006/I (Dec. 20, 2006) [hereinafter Enforced Disappearance Convention].
[12] See Press Release, Asian Hum. Rts. Comm’n, PAKISTAN: Statement to mark the International Day of the Victims of Enforced Disappearances(Aug. 29, 2014), http://www.humanrights.asia/news/ahrc-news/AHRC-STM-167-2014/ (stating that enforced disappearances in Pakistan have become a routine occurrence).
[13] Id.
[14] Submission of Monthly Summary Nov.- 2022, Comm’n Inquiry on Enforced Disappearances, (last visited Jan. 3, 2023), http://coioed.pk/; Enforced Disappearances endemic to Pak, wave of ‘missing persons’: Report, Bus. Standard(Mar. 12, 2022, 11:17 AM), https://www.business-standard.com/article/international/enforced-disappearances-endemic-to-pak-wave-of-missing-persons-report-122031101418_1.html (the CoIED was constituted by the Federal Government under directions of the Supreme Court in order to trace and investigate cases of missing persons).
[15] See Zahra Kazmi, Enforced disappearances in Pakistan raise questions over the role of secret services, DW News (Sept. 4, 2022), https://www.dw.com/en/enforced-disappearances-in-pakistan-raise-questions-over-role-of-secret-services/a-62969115 (explaining why statistics do not accurately reflect the truth of disappearance cases).
[16] Manzoor Pashteen is a human rights activist. See Manzoor Pashteen: Activist who dared to challenge the Pakistani military held, BBC News (Jan. 27, 2020), https://www.bbc.com/news/world-asia-51262639.
[17] Kazmi, supra note 15.
[18] Sammi Deen Baloch, More than 5,000 people are missing in Balochistan. I want my father back, Guardian (July 6, 2022, 07:00 AM), https://www.theguardian.com/global-development/2022/jul/06/pakistan-5000-people-disappeared-missing-balochistan; Moosa Kaleem, Reasons behind the increase in missing persons in Sindh, Herald (Nov. 13, 2017, 01:11 PM), http://herald.dawn.com/news/1153890/reasons-behind-the-increase-in-missing-persons-in-sindh; Missing persons’ case: MQM submits list of 171 workers, Express Trib. (May 3, 2016), https://tribune.com.pk/story/1096064/missing-persons-case-mqm-submits-list-of-171-workers; JAC warns of countrywide protest for recovery of missing Shia persons, News (Apr. 24, 2022),https://www.thenews.com.pk/print/952876-jac-warns-of-countrywide-protest-for-recovery-of-missing-shia-persons; PTI calls upon PM, CEC for recovery of leaders, workers, Express Trib. (Oct. 3, 2023), https://tribune.com.pk/story/2438984/pti-calls-upon-pm-cec-for-recovery-of-leaders-workers.
[19] Declaration on the Protection of All Persons from Enforced Disappearance, art. 1, § 1, G.A. Res. 47/133, U.N. Docs. A/RES/47/133 (Dec. 18, 1992) [hereinafter 1992 Convention]; Rome Statute of the International Criminal Court, art. 7, § 2, cl. i, July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute]; International Convention for the Protection of All Persons from Enforced Disappearance, art. 2, G.A. Res. A/RES/61/177, U.N. Doc. A/HRC/RES/2006/I (Dec. 20, 2006) [hereinafter Enforced Disappearance Convention].
[20] See Rome Statute, supra note 11; Enforced Disappearances Convention, supra note 11.
[21] Id.
[22] Id.
[23] Id.
[24] 1992 Convention, supra note 19.
[25] Id. art. 1, § 2.
[26] Id.
[27] Partition: Why was British India divided 75 years ago?,BBC News, Aug. 14, 2022, https://perma.cc/83ML-K8C2; Pakistan’s day of rejoicing, The Guardian, Mar. 23, 1956, at 7.
[28] Pakistan’s day of rejoicing, supra note 27.
[29] Flashback: The Martial Law of 1958, Dawn News(Oct. 8, 2011), https://www.dawn.com/news/664894/flashback-the-martial-law-of-1958; Malcolm W. Brown, Pakistan Asserts President Yayha Is Quitting Today, N.Y. Times, Dec. 20, 1971, at 1.
[30] New Constitution is Approved by Pakistan’s Assembly, N.Y. Times, Apr. 11, 1973, at 10.
[31] See generally Jayshree Bajoria, Pakistan’s Constitution, Council on Foreign Relations (Apr. 21, 2010), https://www.cfr.org/backgrounder/pakistans-constitution.
[32] Pakistan Const. art. 243, § 1 [hereinafter Pak. Const.].
[33] Id. at § 2.
[34] Id. at § 1; Isaac Chotiner, An Army With a Country, Wall St. J., (Aug. 14, 2016), https://www.wsj.com/articles/an-army-with-a-country-1471208655.
[35] Chotiner, supra note 34.
[36] See Umer Farooq, Who Controls the ISI?, Friday Times (Oct. 12, 2021), https://www.thefridaytimes.com/2021/10/12/who-controls-the-isi/.
[37] Ashok Krishna, The Inter-Services Intel. (ISI) of Pakistan, Inst. of Peace & Conflict Studies (May 25, 1999), http://www.ipcs.org/comm_select.php?articleNo=191; Sabir Shah, Average tenure of 22 ISI Chiefs in 70 years has been 3.18 years, The News (Oct. 12, 2018), https://www.thenews.com.pk/print/379832-average-tenure-of-22-isi-chiefs-in-70-years-has-been-3-18-years.
[38] Int’l Comm’n Jurists, No More “Missing Persons”: The Criminalization of Enforced Disappearances in South Asia 25 (Aug. 2017), https://www.icj.org/wp-content/uploads/2017/08/South-Asia-Enforced-Disappearance-Publications-Reports-Thematic-Reports-2017-ENG.pdf.
[39] Mohammad Tanzimuddin Khan, Enforced Disappearances and answers to two questions, New Age (Dec. 17, 2017, 3:47 PM), https://www.newagebd.net/article/30625/enforced-disappearances-and-answers-to-two-questions.
[40] Odhikar, Bangladesh: Annual Human Rights Report 14 (2016), https://www.omct.org/site-resources/ legacy/odhikar_annual_report_2016_2020-12-11-144534.pdf.
[41]Rules of Law Chronicles, Enforced Disappearances of Pakistan’s Balochi People, Jurist (Oct. 18, 2022) at 1, https://www.jurist.org/features/2022/10/18/rule-of-law-chronicles-enforced-disappearances-of-pakistans-balochi-people/.
[42] Sanaullah Baloch, Balochistan: Epidemic of Enforced Disappearance, News Int’l (Aug. 30, 2012), https://old.unpo.org/article/14781#:~:text=Writing%20in%20The%20News,%20Senator%20Sanaullah%20Baloch%20discusses%20the%20failure.
[43] Salman Hussain, War on Terror to War on Dissent: Enforced Disappearances in Pakistan, 53 Econ. & Pol. Weekly 19, 19 (2018).
[44] Amnesty Int’l, Musharraf is gone, but still no sign of the disappeared, (Sept. 2, 2008), https://www.amnesty.org/en/latest/news/2008/09/musharraf-gone-still-no-sign-disappeared-20080902/.
[45] Hussain, supra note 43, at 20.
[46] Craig Whitlock, U.S. Frees Longtime Detainee, Wash. Post (Aug. 25, 2006), https://www.washingtonpost.com/archive/politics/2006/08/25/us-frees-longtime-detainee-span-classbankheadcourt-had-ruled-in-favor-of-turk-span/86dcf703-1eda-4df1-b96f-aac5670be708/.
[47] See Carol D. Leonnig, Tribunal rejected evidence on detainee, NBC News (Dec. 5, 2007), https://www.nbcnews.com/id/wbna22106473.
[48] Whitlock, supra note 46; In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 470 (D.D.C. 2005).
[49] Sanaullah Baloch, Balochistan: Epidemic of Enforced Disappearance, News Int‘l (Aug. 30, 2012), https://unpo.org/article/14781.
[50] Baloch, supra note 18; Kaleem, supra note 18; Manzoor Pashteen: Activist Who Dared to Challenge the Pakistani Military Held, supra note 16; Missing Persons’ Case: MQM Submits List of 171 Workers,supra note 18.
[51] Bashir Ahmad Gwakh, A Year After His Disappearance, Pakistani Activist Granted Visit With Daughter, Gandhara (Nov. 18, 2020), https://gandhara.rferl.org/a/a-year-after-his-disappearance-pakistani-activist-granted-visit-with-daughter/30957256.html; Pakistan being subjected to 5th – generation warfare in “massive way” but we are aware of the threats: DG ISPR, Dawn (Dec. 3, 2020), https://www.dawn.com/news/1593804; See Waseem A. Qureshi, Fourth- and Fifth-Generation Warfare: Technology and Perceptions, 21 San Diego Int’l L.J. 187, 209 (2019) (defining Fifth- Generation Warfare as the secret deliberative manipulation of actors, networks, institutions, states or any [0GW, 1GW] 2GW/3GW/4GW forces to achieve a goal or set of goals across a combination of socioeconomic and political domains while attempting to avoid or minimize the retaliatory offensive or defensive actions/reactions of 2GW, 3GW, 4GW powered actors, networks, institutions, and/ or states).
[52] See “Missing” Baloch: Protestors chastise media for ignoring issue, Express Trib. (Nov. 11, 2013), https://tribune.com.pk/story/630160/missing-baloch-protesters-chastise-media-for-ignoring-issue/.
[53] Enforced Disappearances in Pakistan: Campaign with #EndEnforcedDisappearences launched on social media continued PST 8:00 PM to 11:30 PM,E. Times (Jan. 28, 2019), https://www.easterntimes.pk/en/enforced-disappearances-in-pakistan-campaign-with-endenforceddisappearances-launched-on-social-media-continued-pst-800-pm-to-1130-pm/; Journalist Matiuallah Jan released 13 hours after being abducted from Islamabad,Dawn (July 21, 2020), https://www.dawn.com/news/1570325.
[54] PTI calls upon PM, CEC for recovery of leaders, workers, Express Trib. (Oct. 3, 2023), https://tribune.com.pk/story/2438984/pti-calls-upon-pm-cec-for-recovery-of-leaders-workers.
[55] Abid Hussain, Missing Pakistani journalist Imran Riaz Khan returns home after four months, Al Jazeera (Sept. 25, 2023), https://www.aljazeera.com/news/2023/9/25/missing-pakistani-journalist-imran-riaz-khan-returns-home-after-four-months; Bethlehem Feleke & Larry Madowo, Arshad Sharif’s family demand justice as they grieve ‘kind-hearted’ journalist killed in Kenya, CNN News (Dec. 2, 2022, 9:02 AM), https://www.cnn.com/2022/12/02/africa/arshad-journalist-pakistan-kenya-cmd-intl/index.html; Abid Hussain, Rights, press bodies slam Pakistan crackdown on ‘critical voices’, Al Jazeera (Jun. 16, 2023), https://www.aljazeera.com/news/2023/6/16/rights-press-bodies-slam-pakistan-crackdown-on-critical-voices.
[56] Ahmed Abdullah, Asim Munir Hafiz Ye Markhor Waly | Pak Army | New Song, YouTube (June 16, 2023), https://www.youtube.com/watch?v=Rtix1MualME.
[57] Id.
[58] Pak. Const., supra note 32, art. 4(2)(a) (explaining “. . . no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. . . .”).
[59] See Pakistan Const.,supra note 32, art. 8-28.
[60] Pak. Const., supra note 32,art. 9, art. 10.
[61] See Pak. Const., supra note 32, art. 12-19, 25; Mahera Sajid v. Station House Officer, Police Station Shalimar & 6 others, (2018) CLC 1858, para. 17 (Pak.).
[62] Pak. Const., supra note 32, art. 10.
[63] Id. § 2.
[64] Application by Mohabbat Shah for Recovery of Yaseen Shah, Missing Person, (2014) Human Rights Case No. 29388-K/13 PLD (SC) 305, para. 6 (Pak.).
[65] See generally Pakistan Penal Code [Pak. Penal Code]; Amir Wasim, NA again passes bill criminalizing enforced disappearances, Dawn News (Oct. 22, 2022), https://www.dawn.com/news/1716295.
[66] See Pak. Penal Code, supra note 65, §§ 359, 362.
[67] See id. §§ 363, 364, 365, 368.
[68] Id. §§ 364, 365.
[69] Ahrar Jawaid, Law of Enforced Disappearances in Pakistan: Discrepancies and Comparison with International Law, Courting The Law (Jan. 30, 2021), https://courtingthelaw.com/2021/01/30/commentary/law-of-enforced-disappearances-in-pakistan-discrepancies-and-comparison-with-international-law.
[70] See Hussain, supra note 43, at 21.
[71] Id. at 19-21; Pak. Const., supra note 32, art. 184, § 3.
[72] Pak. Const., supra note 32, art. 184, § 3.
[73] See Hussain, supra note 43; See President Balochistan High Court Ass’n v. Fed. of Pak. (Balochistan Law & Order), (2014) SCMR 176 at para. 49(2), (6) (2013) (Pak.) (holding that there was a complete breakdown of law and order in the province, and it was beyond doubt that security agencies interfered in the affairs of the province).
[74] See Application by Mohabbat Shah S/o Kabul Shah for Recovery of Yaseen Shah, supra note 64.
[75] Id. ¶ 1.
[76] Id.
[77] Id. ¶¶ 3, 6.
[78] Id. ¶ 15; New Oxford American Dictionary (3rd ed. 2010) https://doi.org/10.1093/OED/3285434271 (defining Kafkaesque as “characteristic or reminiscent of the oppressive or nightmarish qualities of Franz Kafka’s fictional world”).
[79] See Yasser Kureshi, Politics at the Bench: The Pakistani Judiciary’s Ambitions and Interventions, Carnegie Endowment For Int’l Peace (June 23, 2022), https://carnegieendowment.org/research/2022/06/politics-at-the-bench-the-pakistani-judiciarys-ambitions-and-interventions?lang=en.
[80] See Ministry of Interior, “Statutory notification by the Ministry of Interior”, (2011) S.R.O. 149 (I), (Pak.).; The Pakistan Commission of Inquiry Act, No. 6 of 1956, art. 3, Pak. Code (1956), repealed by Act 9 of 2017) https://www.pakistancode.gov.pk/english/UY2FqaJw1-apaUY2Fqa-ap%2Baaw%3D%3D-sg-jjjjjjjjjjjjj (explaining the Federal Government may, “if it is of the opinion that it is necessary so to do, by notification in the official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may be specified into the notification, and the Commission so appointed shall make the inquiry and perform the functions accordingly.”).
[81] The Pakistan Commission of Inquiry Act, supra note 80, art. 4 (The CoIED can summon and enforce attendance of individuals and examine them under oath. It can also require discovery and production of any documents and receive evidence on affidavits. Further, it can issue summons for the examination of witnesses or documents).
[82] Id. art. 3, § 2.
[83] Id. art. 8.
[84] See Comm’n Inquiry on Enforced Disappearances, http://coioed.pk/ (last visited Dec. 17, 2023).
[85] Id.
[86] Azaz Syed (@AzazSyed), Twitter (May 23, 2019, 1:36 PM), https://twitter.com/AzazSyed/status/1131614901942849536?s=20&t=HtL1DmtYiXLJy7WcB1b3VQ.
[87] Mohammad Hussain Khan, Justice (retrd) Javed Iqbal appointed NAB Chairman, Dawn News (Oct. 8, 2017), https://www.dawn.com/news/1362485; See Pakistan: End Anti-Corruption Agency’s Abuses, Hum. Rights Watch (Aug. 6, 2020), https://www.hrw.org/news/2020/08/06/pakistan-end-anti-corruption-agencys-abuses (The NAB is an anti-corruption body that is charged with the responsibility of elimination of corruption, but has been accused of political victimization).
[88] Supra note 86.
[89] Woman at center of video leak scandal speaks up against former NAB chairman, Daily Pakistan (July 7, 2022, 11:21 PM), https://en.dailypakistan.com.pk/07-Jul-2022/woman-at-centre-of-video-leak-scandal-speaks-up-against-former-nab-chairman.
[90] Id.
[91] Usman Khan, Senators want Javed Iqbal removed as missing persons commission chairman, SAMAA News (Sep. 29, 2022), https://www.samaaenglish.tv/news/40018067/pakistan-senators-want-javed-iqbal-removed-as-missing-persons-commission-chairman.
[92] Rizwan Shehzad, Bill criminalizing enforced disappearance introduced in NA, Express Trib. (June 08, 2021), https://tribune.com.pk/story/2304170/bill-criminalising-enforced-disappearance-introduced-in-na.
[93] Saad Ahmed Khan, The curious case of missing bills and missing persons, Geo News (Jan. 11, 2022), https://www.geo.tv/latest/392774-the-curious-case-of-missing-bills-and-missing-persons.
[94] NA passes amended bill on enforced disappearances, Express Trib. (Oct. 22, 2022), https://tribune.com.pk/story/2382956/na-passes-amended-bill-on-enforced-disappearances.
[95] The Criminal Laws (Amendment) Bill 2022 [hereinafter Bill 2022], § 2, https://senate.gov.pk/en/billsDetails.php?type=2&id=-.
[96] Id.
[97] Id. § 3.
[98] Id.
[99] Id. § 2.
[100] Id. § 3.
[101] Bill 2022, supra note 95, § 3.
[102] NA passes amended bill on enforced disappearances, supra note 94.
[103] Id.
[104] The Pakistan Commission of Inquiry Act, supra note 80, art. 4; Comm’n Inquiry on Enforced Disappearances, supra note 84.
[105] Comm’n Inquiry on Enforced Disappearances, supra note 84.
[106] See Khan, supra note 87; see Ghulam Hasnain, Judges ruling on general faced sex blackmail, Times (Nov. 11, 2007, 12:00 AM), https://www.thetimes.co.uk/article/judges-ruling-on-general-faced-sex-blackmail-887ms9xt239.
[107] Manzoor Pashteen: Activist who dared to challenge the Pakistani military held, supra note 16; Kaleem, supra note 18; Mohammad Taqi, What Does a Journalist’s Abduction and Release Portend for Pakistan?, The Wire (July 25, 2020), https://thewire.in/south-asia/pakistan-media-freedom-matiullah-jan.
[108] See Woman at center of video leak scandal speaks up against former NAB chairman, Daily Pakistan (July 7, 2022, 11:21 PM), https://en.dailypakistan.com.pk/08-Jul-2022/woman-at-centre-of-video-leak-scandal-speaks-up-against-former-nab-chairman.
[109] See The Pakistan Commission of Inquiry Act, supra note 80.
[110] Id. art. 3, § 2.
[111] Id. art. 8.
[112] See generally Regul. of the Comm’n [Regulations], No. CoIoED – 2/1/11, Mar. 13, 2011, http://coioed.pk/notification2/.
[113] See generally Pak. Const., supra note 32, art. 243, §1; Chotiner, supra note 34.
[114] The Pakistan Commission of Inquiry Act, supra note 80; See generally Regul. of the Comm’n [Regulations], No. CoIoED – 2/1/11, Mar. 13, 2011, http://coioed.pk/notification2/.
[115] See The Pakistan Commission of Inquiry Act, supra note 80, art. 8.
[116] Kazmi, supra note 15.
[117] Kiran Stacey & Farhan Bokhari, Pakistan orders expulsion of 29 international NGOs, Fin. Times (Dec. 13, 2017), https://www.ft.com/content/15d38124-de54-11e7-a8a4-0a1e63a52f9c.
[118] Enforced Disappearances Convention, supra note 18, art. 1, § 2; Mahera Sajid, (2018) CLC 1858, ¶ 28 (Pak.).
[119] Mahera Sajid, supra note 119, ¶ 32.
[120] Id.
[121] Pak. Const., supra note 32, art. 4, § 2