We have made the point to the detaining country that this is something we believe should happen. We still await the outcome of the point of view we have expressed, which is not unique to us, but also comes from many other members of the international community. Therefore, it is not correct to say we have not stated clearly the Government's position on the matter; we have been explicit.
I would like to point out the advice available to me on the question of legal status, which is important. Both the United States of America and Afghanistan are parties to the Third Geneva Convention of 1949 which relates to the treatment of prisoners of war – the United States having become a party in 1955 and Afghanistan in 1956. While the Taliban had not been recognised as a legitimate government of Afghanistan by the international community, the rights and obligations imposed by the Third Genera Convention still apply to Afghanistan. This is because the convention operates between states, not governments. The Geneva Conventions apply in "all cases of war or any other armed conflict which may arise between two or more of the high contracting parties" and in "all cases of partial or total occupation of the territory of a high contracting party." That relates to Article 2.
In Article 4 of the convention a prisoner of war is defined as a person who has fallen into the power of the enemy, including "members of the armed forces of a party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces." On this basis, members of the Taliban forces, as the armed forces of Afghanistan when captured, would qualify for prisoner of war status.
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 precisely known and contended. However, paragraph 2 of Article 4 of the convention provides that captured members of other militias and other volunteer corps linked to the armed forces of a state may qualify for prisoner of war status providing they fulfil certain conditions, including having "a distinctive sign recognisable at a distance" and "carrying their arms openly." It could be argued that the al-Qaeda forces fulfilled neither of these conditions.
However, when there is a doubt as to the status of prisoners Article 5 of the convention requires that those prisoners enjoy the protection of the convention until their status has been determined by a "competent tribunal". While a competent tribunal is not defined in the convention, a tribunal should possess judicial features and operate in a judicial way, that is, it should be impartial and willing to consider a prisoner's claim to be a prisoner of war. Should a prisoner be found by a competent tribunal not to qualify as a prisoner of war, it should be pointed out that such a person is still entitled to the protection accorded by international standards of human rights, including those contained in the International Covenant of Civil and Political Rights to which the United States is a party, which guarantee that no one be subject to torture or to cruel, inhuman or degrading treatment or punishment. It is also a principle of international humanitarian law that where no provision exists which regulates a particular case, the principles of international law as they result from the practice of civilised nations shall prevail. It should be pointed out that the granting of prisoner of war status to a person does not prevent that person from being tried for war crimes or other crimes by the detaining power. That is the outline detailed legal position with which all of our public pronouncements are consistent with.