The treatment of Taliban and al-Qa'ida prisoners held in Afghanistan by US authorities and the methods used in transporting them to Cuba may be in breach of the United Nations' Geneva Convention.
The International Committee of the Red Cross (ICRC) said yesterday that those being held by American forces must be counted as prisoners of war under the Geneva Convention, and were, therefore, entitled to the full protection offered by it.
However, attempts by the ICRC to get Washington to spell out the exact status of its Afghan prisoners has resulted in a variety of often contradictory responses from different departments in the administration, according to diplomatic sources.
Some of the terms used by America to describe the prisoners, such as "battlefield detainees", have no legal meaning, the ICRC says.
The conditions under which the prisoners, including British Muslims, are being held in the Kandahar air base before they are shipped to Cuba, as well as the forcible shaving of beards and mustaches for the journey, could be in breach of articles of the convention.
The ICRC maintains that Afghan and foreign fighters of the Taliban and al-Qa'ida qualify for prisoner-of-war status and should be treated as such until a properly constituted court, in the United States or elsewhere, decides otherwise.
Catherine Deman, the organization's legal adviser for operations, has arrived in Afghanistan to prepare a report on the situation.
Afghan prisoners have been handed over to the United States by Northern Alliance warlords as well as the new interim government of Hamid Karzai. They are being held by the American military at bases in Kandahar, Bagram and Mazar-i-Sharif. The Independent has learnt, though, that the ICRC has not been able to get access to the prisoners in Bagram and Mazar-i-Sharif, and has discovered that about 360 being held in Kandahar are being kept in unsheltered stockades in the bitterly cold winter, without any privacy. These conditions would breach the Geneva Convention.
The American authorities have stated that the accommodation at Kandahar is temporary and will be improved.
The forcible shaving of the Muslim prisoners, before their flight to the Cuban naval base at Guantanamo Bay, could also be a breach of the convention, which stipulates that religious tenets of prisoners of war should be respected.
The United States is within its rights, under the convention, to remove prisoners from Afghanistan to American territory even though there is no extradition treaty between the two countries, and also to sedate them on the journey to Cuba for reasons of safety.
The British Taliban fighter taken to Cuba on the first flight was one of three Britons captured by the forces of the Uzbek warlord General Abdul Rashid Dostum at Kunduz. They were handed over to the Americans and taken to Kandahar without the British authorities being informed. Embassy staff in Kabul only discovered their details after the ICRC contacted them.
The one who was flown with 19 others to Cuba is believed to have been in the senior ranks of al-Qa'ida. The other two are also expected to be taken to Guantanamo Bay.
The majority of those being taken to Cuba are foreign fighters for al-Qa'ida or the Taliban, rather than Afghans. The camp at Guantanamo is designed to hold 2,000 people and all of those at the Kandahar air base are expected to end up there.
America expects Afghan warlords and the government to hand over any senior al-Qa'ida or Taliban figures they apprehend. US officials were furious when Gul Agha Shirzai, the American-sponsored governor of Kandahar, released seven senior former Taliban officials, including three ministers, after they had surrendered.
According to Afghan government sources in Kabul, there is increasing disinclination to deliver prisoners to the Americans because they are likely to be flown out of the country without Washington even seeking the permission from the Afghans.
The Americans, however, are determined to avoid keeping large numbers of suspects under custody in Afghanistan because of the uprising of prisoners at a castle in Mazar-i-Sharif after the fall of Kunduz. The risks were also highlighted by an attack on the Kandahar air base on the night the first lot of prisoners was flown to Cuba.
American military officials also say that Pentagon policy is to disengage from Afghanistan as soon as the military operation against terrorism is deemed to be over. Thus it makes practical sense to remove prisoners who may face charges and trials in a process lasting months or even years.
© 2002 lndependent Digital (UK) Ltd