U.S. Attorney General Alberto Gonzales fighting for his political life. (Ron Edmonds/Associated Press)

Did Alberto Gonzales, the embattled attorney general of the United States, turn a blind eye to legal history when he wrote a memo to President George W. Bush back in 2002 suggesting ways to avoid the Geneva Convention?

While critics have always criticized Bush administration policy toward the Geneva Convention and prisoners scooped up in the so-called war on terror — policies that led to the controversies over the military prisons at Guantanamo Bay and Abu Ghraib — there has not been much attention paid to one legal argument in particular Gonzales made in his memo to Bush.

Gonzales, a Bush confidante, was White House Counsel on January 25, 2002 when he wrote the confidential memo, which subsequently found its way into the press. He is currently facing censure in the U.S. Congress, not only for the controversial treatment of detainees but because of the firing of several U.S. federal prosecutors, allegedly for partisan reasons.

In the 2002 memo entitled "Decision Re: Application of the Geneva Convention on Prisoners of War to the Conflict with al-Qaeda and the Taliban," Gonzales outlined several ways in which detainees could be held without any protection from international law.

At the time, one of the things he stated was that "some of the language of the GPW [Geneva Convention on Prisoners of War] is undefined … and it is difficult to predict with confidence what actions might be deemed to constitute violations of the relevant provisions."

Examples at hand

Gonzales does go on to say that the Convention does prohibit "outrages against personal dignity" and "inhuman treatment." But he doesn't provide examples of what these terms mean, suggesting that they are part of some vague, undefined aspect of the Geneva code. Though he wouldn't have had to look very far to find a definition of "inhuman treatment."

In fact, a three-page discussion of the subject can be found in a standard legal text, Prisoners of War in International Armed Conflict, by Howard Levie, published by a branch of the U.S. government, the U. S. Navy War College.

If, in his advice to the president, Gonzales had wanted detailed examples of "inhuman treatment," he could also have turned to Second World War precedents, which did exactly that. These are the kinds of precedents that should have been easy for those with the research resources of the White House to find, if they had wanted to.

Most of the precedents come from the war in the Pacific and Southeast Asia where the Imperial Japanese Army held American, British, Canadian and Australian prisoners of war.

In hearings after the war, these soldiers were found to be victims of "inhumane treatment" (the term used by British war crimes courts) or "mistreatment," (the term used most often by the American tribunals).

A well-known term

The word "humanity" was a key phrase used by American war crimes investigators as they debriefed those recently freed POWs following the conflict.

One recently declassified document tells of a 25-year-old American POW who had been a slave labourer in the mines at the Fukuoka 17 camp near Omuta, Japan.

On September 19, 1946, he was recovering in the Philippines when he met with an officer from the U.S. Army War Crimes Investigating Detachment.

The investigating officer questioned the young man from a standard debriefing form, which asked: "Do you know, or have you reason to believe that Japanese forces failed to treat prisoners of war with humanity or otherwise committed atrocities and war crimes against them?"

That stock phrase, "failed to treat prisoners of war with humanity," gave the former POW an opening to tell what had happened to him, as it did to all the other ex-prisoners asked the same question.

When cases came to trial, the American and British cases took slightly different legal tacks. The Americans would usually charge a war crimes suspect with violating the "laws and customs of war." Then, in the specifications, they would list individual incidents of mistreatment.

The British, on the other hand, would lay a more general charge of "inhumane treatment" and then go on to present a case to a war crimes tribunal of what inhumane or inhuman treatment actually meant.

Include the Gulf War

The British had jurisdiction over Southeast Asia, the location of the Burma Thailand Railway, made famous by the movie Bridge on the River Kwai, and it was there that the charge of "inhumane treatment" was frequently used.

The U.S. had a war crimes investigating branch in Singapore from September 1945 to June 1946 and participated in trials where American service personnel had been victims. These included survivors from the USS Houston who were forced to build a branch of the Burma Thailand Railway in Burma.

The Nazi distinction

There was a key difference between the situation with Nazi Germany and imperial Japan. The Nazis generally followed the 1929 Geneva Convention when it came to POWs from the British Commonwealth and the U.S.

Senior Nazis however refused to apply the Convention to Russian prisoners.

When German Admiral Wilhelm Canaris objected to the treatment of Russian POWs, Field Marshall Wilhelm Keitel, Hitler's chief of staff, replied: "The objections arise from the military concept of chivalrous warfare. This is the destruction of an ideology. There I approve and back the measures."

Keitel was hanged for war crimes after the Second World War.

The majority of the millions of people who were killed in the Holocaust were not covered by the 1929 Geneva Convention because it only concerned military prisoners.

Charges relating to the Holocaust came under the more general "crimes against humanity." As a result of the Holocaust and other atrocities during World War II, the 1949 Geneva Conventions were extended to cover civilians.

Equally important were the Rangoon Jail cases where the Japanese were tried for the inhuman treatment of U.S. pilots who had been shot down over Burma.

But Gonzales wouldn't have to go to cases from Singapore to find how inhuman treatment was defined under the Geneva Convention.

The International Military Tribunal for the Far East, the Tokyo war crimes trial of major Japanese leaders, organized by American General Douglas MacArthur held months of hearings on the inhuman treatment of POWs and civilian internees. Prosecutors spent days summing up cases of inhuman treatment before the tribunal.

All the war crimes trials at the end of the Second World War came under the jurisdiction of the UN War Crimes Commission, and the U.S. and Britain were the main countries that planned the trials, so the records defining the term inhuman treatment were easily available to anyone who looked hard enough.

Since the first treaty on treatment of prisoners, the 1907 Hague Convention, the "detaining power" has been required to deal with these prisoners "with humanity."

The Second World War trials concerned the 1929 Geneva Convention, but the precedents remained (like those at the major Nuremberg war crimes trials) after the conventions were updated in 1949.

In 1995, when the United States updated its POW regulations after the first Gulf War it ordered that U.S. personnel treat each detainee humanely and with respect.

It added that any U.S. military or civilian employee "who fails to treat any detainee humanely, respectfully or otherwise in accordance with the GPW" could be punished under the U.S. Uniform Code of Military Justice.

There are a century of definitions of inhuman treatment in times of conflict, if Gonzales or his staff had looked for them.

Robin Rowland is a producer and photo editor with CBC.ca. This article is based on material in his forthcoming book A River Kwai Story: The Sonkrai Tribunal to be published in July by Allan and Unwin.

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