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.