2002-01-16 Entry: "A Little Research..."
After restraining myself from commenting on the detainees in Cuba yesterday, I managed to read a few more sources on the subject and got a better picture of their status.
Basically, they're not prisoners of war as described by the Geneva convention, so those particular requirements on their treatment do not apply.
For a person to be a prisoner of war, they've got to clearly show that they are members of a standing army with which you are at war (e.g., a uniform or other insignia), and they have to surrender to your forces.
Lets pick all this apart for a minute and look at the problems here. Firstly, the US government do not recognize the Taliban as a government; in fact, they recognize no-one as the government of Afghanistan. As such, Afghanistan is unruled wasteland. This presumably means they are allowed to carry out military maneuvers there without asking anybody's permission (the land's unclaimed after all).
You can't declare war against a country that doesn't exist, and you can't declare war against an organization, so that means there is no "war" between the United States and either the Taliban or al-Qaeda.
The Taliban and al-Qaeda are distinct entities; the Taliban are recognized by a large portion of the world as the current government in Afghanistan (in much the same way as Sadam Hussain is ruler of Iraq - he's a dictator, but he's the ruler). al-Qaeda are an organization which has some members and owns some property in Afghanistan.
As far as the Afghan people and the Taliban were concerned, a foreign power was bombing their country and putting troops on their soil without permission and without declaring war. As such, they're are surely within their rights to defend themselves. However, Afghanistan has no standing army, and so it is presumably up to the common people to defend themselves (so, basically a militia force).
The United States have probably acted perfectly legally as far as their own laws are concerned. However, as far as any country who recognizes Afghanistan and the Taliban are concerned, they've acted illegally (it'd be like them invading Britain and detaining our citizens for trying to defend themselves).
The Taliban have not broken any US law - they've defended their country against a foreign agressor. This agressor asked for the arrest and extradition of an individual but didn't bother presenting any evidence, instead using threats and intimidation to try to gain compliance. Then they tried to take this individual by force. The Taliban then declare war on the United States, and so are required to treat any US soldiers in uniform who surrender to them as Prisoners of War - I'm guessing none did, but that'd be the conditions.
al-Qaeda are an organization which have committed acts of terrorism against the United States. Any al-Qaeda member who is arrested will see trial for their involvement in these acts. However, you can't arrest someone on foreign soil; you can ask for their extradition and follow any other legal recourse, but you cannot invade their territory and remove a foreign national.
So the only people in limbo in Cuba are the Afghan nationals - as the United States doesn't recognize the country, they're people without a nation. I'm not really sure who would represent them - it's not as if there are large swathes of unclaimed wilderness around the world. I guess its the same as any citizens of Antarctica (which I think is nominally a protectorate of the United Nations, but don't quote me on that). Anyone held in Cuba who is a national of a country recognized by the United States is being illegally detained. I don't really know how we get them back. We could theoretically let the United States have them but they'd be required to treat them as with any other extradited prisoner. So they'd have to be tried in a civilian court with all the legal protections that requires; and as with any extradition from Britain, they wouldn't be able to execute them.
Not that the Taliban have committed any crimes against the United States... as I'm fairly sure defending your home from a foreign agressor is catered for in some United Nations charter somewhere. So they have no grounds to hold any Taliban members whatsoever, and only tenuous grounds to hold al-Qaeda members who are nationals of a country that the US recognize.
I wonder how easy it'd be to charge the United States with "Crimes Against Humanity?"