KABUL, Afghanistan (EPN) -- U.S. Defense Secretary Donald Rumsfeld should consider thousands of captured Taliban and al Qaeda fighters as legal prisoners of war, despite denouncing them as "unlawful combatants," according to the International Committee of the Red Cross (ICRC).

"You have two phrases which were used [by Rumsfeld] -- 'battlefield detainees' and 'unlawful combatants'," said Michael Kleiner, ICRC spokesperson for Afghanistan, in a taped interview.

"'Battlefield detainee,' for example, is a term that does not exist in legal books. There is no such thing in international humanitarian law as a 'battlefield detainee'," Mr. Kleiner said.

"Because the Americans are a foreign force here…the conflict we see here in Afghanistan has become an international conflict," he said.

"There has been an offensive move from another state, or from a group of other states, against the de facto authorities of Afghanistan.

"This automatically -- you don't have to declare war or anything else -- becomes an international conflict," the spokesman of the Geneva-based ICRC said.

Mr. Rumsfeld, in a Jan. 11 news conference, described captured Taliban and al Qaeda fighters as "battlefield detainees" and "unlawful combatants" ineligible for protection as PoWs under the Geneva Conventions.

Al Qaeda was described by the U.S. as a terrorist "network" and not a government, but some of its members joined the Taliban regime and may also qualify as Taliban military personnel, the ICRC spokesman said.

"Is this al Qaeda person only al Qaeda? Or was he also a Taliban military person?" Mr. Kleiner said, referring to captured al Qaeda members whose full role in the Taliban might not be immediately clear.

"Everyone captured in this context should be presumed a PoW," he said. "This is according to the law," Mr. Kleiner added.

"Although the Taliban regime was not recognized internationally, the fact that they controlled 80 percent of the country and the fact that they had a military structure and an organized governmental system means that they were a de facto government here," he said.

"This means that there has been now a conflict, internationally, between this coalition and Afghanistan.

"Anybody captured with a gun who is supposed to be a combatant is supposed to be considered, at least presumed, a PoW until the court decides otherwise," Mr. Kleiner said.

Opening an ICRC law book which published the Third Geneva Convention of 1949, he turned to a chapter titled "Prisoners of War" and paraphrased the qualifications:

"You can be a soldier, meaning a member of the national armed forces of one of the parties to the international conflict.

"You can be a member of a militia or volunteer corps forming part of the armed forces.

"Even if the detainee professes allegiance to a government or authority not recognized by the detaining power…that is enough to be an official combatant," he said.

The ICRC in Kabul issued a statement on Jan. 13 which said: "For the ICRC, prima facie, the Taliban soldiers and the foreigners fighting with them seem to [be] entitled to the PoW status."

The statement added: "Whether the al Qaeda groups were part of the Taliban armed forces, or were a militia or a volunteer corps belonging to the Taliban without being formally integrated into their armed forces, can be discussed.

"In this last case, they could also be PoWs if they fulfill additional conditions, such as carrying arms openly and conducting their operations in accordance with international humanitarian law.

"The ICRC is not in a position to make a decision on this point," the statement added.

But one condition which needs to be fulfilled, according to Article Four, is that combatants must have "a fixed distinctive sign recognizable at a distance" -- such as a flag, emblem or uniform.

Al Qaeda rarely, if ever, exhibited such a sign.

Another condition demands combatants conduct "their operations in accordance with the laws and customs of war."

The Sept. 11 aerial attack on New York's World Trade Center and the Pentagon was described as "terrorism" by the U.S. government and not a lawful act of war.

Stripping captured Taliban and al Qaeda of their PoW status, however, may set a dangerous legal precedent.

"Here in Afghanistan, the ICRC needs to make sure the law is known and understood because there is a worry that if the law in a situation like this is not respected" then other nations may also ignore the rights of PoWs, Mr. Kleiner said.

"We may expect in other conflict situations…smaller players may then refer to what happened here and say, 'The biggest players in this world have not complied with your [Geneva Conventions] text, why should we?'

"That is extremely worrying," he added.

"The four Geneva Conventions are the base of international humanitarian law, which is also known as the 'Law of Armed Conflict' or the 'Law of War'," he said.

The ICRC does not know the total number of prisoners captured by U.S. and other foreign forces in Afghanistan or by the U.S.-backed interim Afghan administration.

"ICRC has registered 4,800 people" captured during the war who were now in about 40 jails and detention centers scattered across Afghanistan, he said.

Some prisoners are in "very good conditions where people have access to food, water [and are able to] wash and pray according to religious standards applied here."

Other prisoners suffer "bad conditions, ill treatment" including guards "brutalizing detainees," he said.

"There the ICRC intervenes," he added, refusing to identify the sites or indicate if the authorities were Afghan or foreign forces.

U.S. officials have granted the ICRC access to its detainees in Afghanistan, he said.