The case for sorry
OVER six months since the Nato attack on the Salala check-post, and years since the initiation of drone attacks on Pakistani territory, relations between Pakistan and the United States stand paralysed on the issue of an apology.
At the recently held Nato summit in Chicago, the failure of the US to apologise for the check-post attack, which killed 24 Pakistani soldiers, remained the obstacle that prevented a deal between the two countries on the reopening of the Nato supply route. The United States glowers, Pakistan sulks.
Amid this hankering for apologies and the expectations attached to them little attention has been paid to the meaning of an apology in the international context.
Unlike personal apologies, easily tendered, sometimes accepted, other times ignored, the means and value of ‘sorry’ tendered between nation-states has been the subject of much contention.
Existing international law on the tendering of apologies, when they are due and which country must offer them, is governed by the UN International Law Commission’s Draft Articles on ‘Responsibility of States for Internationally Wrongful Acts’ (‘the Articles’) adopted in 2001.
According to these articles, which do not define the substance of what may be considered “wrongful acts” and only what must happen when they have already happened, a state that engages in internationally wrongful acts must cease the wrongful act, offer guarantees of “non-repetition” and finally also make “full reparation for injury caused by the wrongful conduct”.
The reparation can take the form of “restitution, compensation or satisfaction” based on an assessment of the situation that existed prior to the commission of the wrongful act. In this sense, restitution is imagined by the articles is to make the aggrieved party whole. In a situation in which such restitution is not possible, the articles require that the responsible state provide “a formal apology” for the wrongful act.
Pakistan is not only wrangling over apologies on the international front, domestic politics stands similarly embroiled in the unfulfilled demand for admissions of wrongdoing and expressions of remorse. For months now, Prime Minister Yousuf Raza Gilani has been mired in controversy going head to head with the Supreme Court regarding his failure to investigate charges of corruption against President Asif Ali Zardari.
In his appearance before the court, the prime minister refused to tender an apology for his inaction leading to his recent, largely symbolic chastisement for contempt of court. In the local version of the global mess, the Supreme Court glowers, the administration hedges and the apology never comes.
The curious correlation between what Pakistan demands internationally and fails to enable domestically is interesting not simply because of the chronological coincidence of two apologies dominating the debate, but also because it sheds attention on what Pakistanis expect apologies to accomplish.
In the international case, the deaths of its soldiers, the intractability of the attackers who continue to deny responsibility and the occurrence of the incident months after similar less potent incursions had convinced most in Pakistan that an apology from the US is not only necessary but legally warranted.
In the case of Prime Minister Gilani, an apology is expected and denied for the opposite reason; a disagreement on whether the legal ruling by the court and the understanding of immunity by the prime minister’s legal team are not in accordance. In both domestic and international cases, the core issue seems to be disagreement on the morality rather than legality of the matter which is held up as a reason to deny an apology or admit the wrongness of the act.
In the Salala case, the legal parameters defined by the UN articles seem to delineate clearly that a “wrongful act by a state”, in this case an attack on a check-post within Pakistan by a foreign nation, would seem to qualify, the inability to resurrect the 24 soldiers making actual restitution impossible and leaving a formal apology the obvious and only option.
In the prime minister’s case, an apology would be a similar admission of guilt, an assertion that regardless of the chronological umbrella of immunity the question of corruption nevertheless requires investigation.
The failure in both cases then is not perhaps of the parties involved but the vacuum of legitimacy and authority that allow such stalemates to occur. In the case of the international question, the UN has in recent years lost its ability to arbitrate or temper any real conflict between states.
In the domestic case, the increasing politicisation of the Supreme Court has similarly eviscerated the moral standing of the law, leaving it as an avenue for political vendetta.
Similarly, devolution has occurred at the UN whose most recent failure — the inability to mobilise the Security Council to take action against the Syrian regime that is killing thousands of its own people — prompted Amnesty International to say that it was a “tired institution” that lacked “relevance” and was “increasingly unfit for purpose”.
In both cases then, the absence of an apology or perhaps even the need for one posits on the fact that immoral and illegal actions, the incursion on another state’s property, the use of power for corrupt purposes, the use of it to do not what it is right but that which because of brute force is possible, represents an end of law.
In both cases, the mechanics and trappings of law continue to exist: a Supreme Court that hears cases, issues decisions and conducts investigations, a transnational body that creates rules, defines parameters and suggests a basis for the elusive apologies nations demand and perhaps deserve — but neither is able to create the unity required both within a country and within a world to make their actions meaningful or their pronouncements binding.
The fruit of the legal pantomime is an ever more acute, ever more painful, ever more prescient yearning for apologies that either never arrive or are miserably empty of the salve so desired by the domestically wounded or the internationally ignored.
The writer is an attorney teaching political philosophy and constitutional law.
Defense Secretary Leon Panetta will brief allies on the U.S. strategic shift toward Asia and will seek to allay concerns that fiscal uncertainty could undermine Washington’s commitment to the effort as he begins a week-long visit to the region this weekend. With the Asia-Pacific region unsettled by renewed tensions over competing sovereignty claims in the South China Sea, Panetta flies to Hawaii on Wednesday for briefings with the head of the U.S. Pacific Command before traveling on to Singapore for the annual Shangri-La Dialogue.
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Panetta is scheduled to visit India on his trip, but not Pakistan.
The US/NATO fire mission was told by the Pakistan command that they had no troops in the area. So who could be doing the shooting? The Taliban of course.
I am not sure if the Pakistani leaders are not opening the NATO supply route due to no apology. The real reason is that a large number of people as well are the army are opposed to this.
For some of those commenting above, Yes, just regretting is not enough. When they say sorry they admit to the mistake they made. US is not willing to accept the fact that they made a mistake, and are also not willing to apologize for that.
Pakistan has chosen by it's actions to be an enemy of the US. Why ask your enemy for an apology ? I can assure you it will NEVER happen. Apologize to the country that hid OBL and protects the Taliban. NEVER.
Although the US has several times expressed its regrets (which for many is the same thing as an apology) , it is going to be harder now for the US to give Pakistan an apologize. There are at least two reasons: 1) The shrill accusation from the start by the Pakistani Military and Government that the incident was an intentional act, even before an investigation by either side, made it clear the Pakistanis were going to bluster to cover up the truth for their domestic audience. This did not sit well with the US establishment. 2) There is every indication that the Pakistani military fired first – though never mentioned in the Pakistani national press, this is not at all uncommon as reported in the New York Times. Reelection politics in the US may have some impact, but the US doesn't like to be "gamed" in such an obvious manner as Pakistan is attempting. Same goes for transit fees.
Oh, and just to highlight the rush to judgement by an uncooperative Pakistan, how is that Abbottabad report coming…? See how short a time it takes to produce a report when your government wants to (Salala) and how long it takes when you want to sweep something under the rug (Abbottabad).
Agreed 100%
The perception from America is that the Pakistanis in Salala fired their guns first at NATO helicopters….this invoked the " rules of engagement" which always allow troops to defend themselves…unfortunately is becomes virtually impossible for politicians to apologize for their troops use of self defense on the battlefield…
The Salala friendly fire accident was never recognized as an attack on Pakistan by rational people.
It was neither a wrongful act or wrongful conduct. The Pakistan military command informed the fire mission that there were no Pakistani troops in that area. This is the USA's position, so this whole argument over an apology is going nowhere.
The article is written well enough but is really beside the main point. Such things are OK between normal states in normal contexts — something that Pakistan can claim neither to be or be a part of. That is why it makes no difference apology or no apology. If anything at all will 'satisfy' the Pakistanis it will be a PUBLIC prosecution (ideally in Pakistan itself or at least in a recognized Intl court) of those that were directly responsible for the incident. Especially of those who ordered it. Only then it will suffice. Then the other matters are tid-bits by comparison. An 'apology' – be it right-justified or left-handed makes no difference to a country like Pakistan especially from an 'ally' like America.
By some accounts the USA has offered over 20 different apologies – but what Pakistan wants is an "unconditional apology" from the President of the USA acknowledging full responsibility for all wrongdoing. That's not going to happen – not because of the USA elections – not because of Pakistan elections – but because the USA investigation which you were invited to participate in concluded that you fired first. The fact that you refused to participate in a joint investigation combined with placing the full blame on the USA before you even had a chance to perform your own proper investigation is one of the reasons that no one outside of Pakistan believes that your blameless.
An excellent, well-expressed article. On the Salala tragedy, within two days as reported in BBC, NYT and Dawn, the US government offered to the Pakistan government to join together openly in a joint investigation. Pakistan military refused. Now we have to live with two versions of what happened. It would have been so much better for them to work together so we could have one report, rather than today having two completely different reports.
People of pakistan feel "an apology from the US is not only necessary but legally warranted " Hummn
Rest of thge world feels "an apology from the Pakistan to US and the rest of the world is not only necessary but legally warranted for harboring OBL in particular and terrorisom in general"
When is Pakistan going to apologise to whole world for various terrorists attacks in the world. Ms. Rafia are you going to write about it?
Rafia Zakaria at her usual best! Again!
Saying sorry or expressing regret is not enough for an accident? Pakistanis want Obama to apologize personally — why — because he is Barack Hussein Obama — not George W. Bush – ("you're either with us, or against us")?
Obama should not apologize to his inferiors.