Other Questions. - Prisoners' Status.

John Gormley

Question:

8 Mr. Gormley asked the Minister for Foreign Affairs the contacts he or the Government has made with the US or the UK Governments, or at EU or UN level, concerning the condition and status of prisoners from the Afghan War being held in Guantanamo Bay, Cuba. [3831/02]

I refer the Deputy to my reply to Priority Questions Nos. 1 and 2. He may not have been present for the replies but perhaps I could deal with the matter by way of a supplementary question from him.

Unfortunately, I missed that. I was looking at the monitor in the restaurant and while I saw the Minister's lips move, I did not hear anything.

That is usually the case.

I understand that the American position, in essence, is that the Afghan war is not actually a war and, therefore, these men are not prisoners of war. The Minister probably has much more expertise in these matters than myself but, to the untrained eye, this looks suspiciously like a war, with B52s bombing the living daylights out of people. Can the Minister explain to the House the reason we do not designate these people as prisoners of war and why they have been ill-treated as a result? Has the Minister made representations? I regret to say I did not hear the replies to Questions Nos. 1 and 2, but can the Minister explain to us the way we now define war and armies? We do not have a European army, we have a rapid reaction force. Will the Minister explain that?

The record will show the detailed replies I have given and the detailed replies to supplementaries which include the legal opinion I obtained on this matter regarding our interpretation of the situation, the fact that the Geneva Conventions apply, the explanation of customary international law and how one applies the principles in this particular case. The best way of emphasising this is to say that the treatment of the prisoners is of immediate concern and that it should be in compliance with humanitarian law.

The question of the status, which is equally important, is one upon which there has not been agreement as to how to proceed because of the United States position. I have outlined our position and, as a friend of the United States, have said what I believe should happen, namely that where there is a doubt the convention applies until such time as a competent tribunal is set up to decide on the matter and that such a competent tribunal must be impartial and independent.

And judicial.

And judicial. That explicit require ment would best satisfy everybody. There is an objective case to be made in relation to al-Qaeda prisoners and it would be in the interest of international public opinion for that explicit step to be taken. The according of prisoner of war status does not deny the possibility of those prisoners being tried for war crimes or other crimes by the detaining power in due course but in the meantime, in terms of a treatment regime, the permanent presence of the International Red Cross is a guarantee that the treatment issues will be dealt with and the US has given a commitment that the treatment issue will be in accordance with that. The status issue is an issue upon which we do not agree.

While recognising the atrocities that took place at the World Trade Centre and the obvious right of the offended party to take action, it is worrying for some countries which would be well disposed to the United States to see prisoners being treated in a fashion that is not in accordance with the best standards. I ask the Minister to keep that in mind in pursuing that aspect of the case.

Is it possible to distinguish between Taliban and al-Qaeda soldiers? Is that a difficulty and is that something the Minister has tried to investigate on behalf of this country?

I made the point in a prior reply that a prisoner of war is defined by the convention as a person who has fallen into the power of the enemy, including "members of the armed forces of the party to the conflict as well as members of militias or volunteer corps forming part of such armed forces". On the basis of that paragraph, members of the Taliban forces, as the armed forces of Afghanistan when captured, would qualify in our view for prisoner of war status and the status of al-Qaeda forces under the above-mentioned paragraph would depend on whether they could be seen to be "a militia or volunteer corps" forming part of the forces of Afghanistan. The precise relationship between the Taliban and al-Qaeda forces is not known and the doubt that arises out of that, in compliance with the convention, is best resolved by a competent tribunal being set up and adjudicating on it.

US Secretary of Defence Rumsfeld's statement that it would save a lot of trouble if prisoners were not taken was a clear invitation to a breach of the Geneva Convention.

It is important to point out that certain rules apply in war and that the Geneva Conventions are well established.