The problem with that in this case is that they are, perforce, totally ineligible for POW status under any circumstances, as they were not fighting for a recognized government. A technicality perhaps, but the Taliban was not extended formal diplomatic recognition by very many people. I don't think even Pakistan did so.
It's not relevant; the Geneva convention states;
Article 4
A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
1. 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.
2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.
3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
(
http://www.unhchr.ch/html/menu3/b/91.htm)
Otherwise, any country could refuse to recognise the legitimacy of whoever they were fighting and thus justify war crimes. The Taliban forces cover all 3 of those; any 'illegal combatant' status would have to be determined by b,c, and d (2), which would require a fair tribunal to determine. A Taliban soldier, even if wearing ****ty khakis, would probably satisfy the b,c,d clauses unless he was a suicide bomber or somesuch. (b is curious, i'll admit - how do troops have a 'fixed recognisable sign from a distance' in an ordinary army?)
This has always amused me, because if what you say is true, then why are there not vastly greater numbers of detainees? You could apply that description to probably more than 50% of the total population of Afghanistan. If it was really so lucrative, really so commonplace, then why are there not 10,000 people still sitting in cellblocks in Gitmo? Either something has been vastly oversimplified in that description or there was a filter along the line that kept the huge numbers of people answering to that description out. Either way, it doesn't work.
Because there isn't room for 10,000 people in Guantanamo.....plus, there are the people handed over to the US by the Northern Alliance for bounty.
There are an estimated 1,500+ held in US camps in Afghanistan in places such as Khost, Asadabad, Jalalabad, Bagram and Kandahar.
This is not including black sites, of course, such as Diego Garcia, or in Thailand or Poland (amongst others). Or rendition to Saudi Arabia, Syria (stopped because of the rather obvious bad PR-ness of that), Jordan, Pakistan, Egypt etc.
And of course ignoring the 14,500 held in Iraq, who for the sake of argument I presume are Iraqis (and AFAIK are uncharged).
Apparently the US has detained in total over 80,000 people since 2001, but I'm not sure of a source for that figure.
