Britain will treat Taliban and al-Qa'ida fighters captured in Afghanistan as prisoners of war, in contrast to the Americans, who have refused to grant the status to detainees under their jurisdiction.
But prisoners held by the British will get only temporary protection from the Geneva Convention. Because the British authorities "do not have the resources" to hold tribunals to decide whether they qualify as PoWs, detainees will be handed over to the interim Afghan government. Many are likely to be passed on to American custody via the Afghans and end up at Camp X-Ray at Guantanamo Bay in Cuba.
Those left in Afghan custody will be incarcerated in overcrowded and disease-ridden prisons where there is routine mistreatment, and which have been condemned by international agencies.
The human rights group Amnesty International said yesterday that such action by British forces could be in breach of the Geneva Convention, which forbids the handover of prisoners to regimes that cannot guarantee minimum human rights safeguards. A spokesman said: "British forces have a clear responsibility under international law for the welfare of any person who has been in their custody."
The British authorities maintain that discussions have taken place with the Afghan Foreign Minister, Abdullah Abdullah, to set up tribunals in Kabul to decide the status of prisoners. But senior sources in Hamid Karzai's government pointed out that the ramshackle Afghan legal system simply would not be able to undertake such a task.
Captured British nationals will not be automatically handed over to the Afghans. Instead, the British military will consult London before deciding what to do with them. At present about 40 are being held in Afghanistan and Pakistan, and four at Guantanamo Bay.
An alternative course of action for those captured would be for British tribunals to decide on the status of the prisoners, and then their detention in British-run facilities. But this is deemed to be impractical by the British Government.
The proposals were revealed yesterday with Royal Marines about to go into action in the Afghan mountains. Virtually the entire British expeditionary force of 1,700 men is now in place at Bagram airbase, along with US and other allied forces, for what is expected to be an intense and sustained offensive.
Bagram, a former Soviet base which is now the focal point of allied operations in the Afghan war, will be the first location for enemy fighters taken prisoner, and their treatment will be commensurate with PoWs under the Geneva Convention, according to defence sources.
The detainees will stay in the same type of tented accommodation as allied soldiers, receive the same food, with exceptions made for religious reasons, and be allowed free association among themselves.
The prisoners will be interrogated by military personnel, including members of military intelligence, and MI5, which has carried out valuable interrogations of British nationals captured in the war, at prisons in Afghanistan, Pakistan and Guantanamo Bay. US intelligence agencies will also be allowed access, under reciprocal arrangements. The detainees will not be allowed legal representation and thus any evidence gained in questioning would not be admissible in any future court hearings.
The detainees will be allowed to contact their families, through either the British military authorities, in which case they would be vetted, or the Red Cross, where there is no vetting system.
The treatment of Afghan war prisoners by the US has led to vocal international protest. More than 300 are still being held at Camp X-Ray in chain-link cells open to the elements, and about 250 others are being held under similar conditions in Kandahar.
The US government has said that some of the prisoners will be tried before military tribunals, although it has not said what charges they will face.
The US Defence Secretary, Donald Rumsfeld, has said that others may be sent back to their own countries, provided that they are tried there.
During the savage Afghan civil war the Northern Alliance, the main element in the Afghan interim government, was guilty, along with other sides, of atrocities against prisoners, including torture, summary executions, and leaving detainees to die packed into containers.
Although those excesses are no longer evident, prisoners held by the Afghan interim government have routinely complained of mistreatment and beatings. The Red Cross has just started emergency feeding of prisoners at the biggest jail, in Shibergan, near Mazar-i-Sharif, with many of them having to be given liquid food to counter malnutrition.
The prison, run by General Abdul Rashid Dostum, deputy defence minister in the Afghan government, holds more than 7,000 in accommodation built for 2,700, and disease is rife.Reuse content