E/CN.4/2006/120 page 8 II. ARBITRARY DETENTION AND INDEPENDENCE OF JUDGES AND LAWYERS 17. The Chairperson of the Working Group on Arbitrary Detention17 and the Special Rapporteur on the independence of judges and lawyers are deeply concerned about the legal regime applied by the United States to the detainees in the Guantánamo Bay detention centre. In their view, the legal regime applied to these detainees seriously undermines the rule of law and a number of fundamental universally recognized human rights, which are the essence of democratic societies. These include the right to challenge the lawfulness of the detention before a court (ICCPR, art. 9 (4)) and the right to a fair trial by a competent, independent and impartial court of law (ICCPR, art. 14); they protect every person from arbitrary detention and unjust punishment and safeguard the presumption of innocence. 18. The legal regime imposed on detainees at Guantánamo is regulated by the Military Order on the Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism of 13 November 200118 (hereafter referred to as the “Military Order”). It allows suspects to be detained indefinitely without charge or trial, or to be tried before a military commission. This section assesses the legal basis for detention and the remedies available to challenge detention from the perspective of the two above-mentioned mandates. It then assesses whether these military commissions satisfy the minimum international law requirements of a fair trial and an independent tribunal, in particular as set out in article 14 of ICCPR and in the Basic Principles on the Independence of the Judiciary and the United Nations Basic Principles on the Role of Lawyers. A. Deprivation of liberty at Guantánamo Bay 19. The fundamental proposition of the United States Government with regard to the deprivation of liberty of persons held at Guantánamo Bay is that “[t]he law of war allows the United States - and any other country engaged in combat - to hold enemy combatants without charges or access to counsel for the duration of hostilities. Detention is not an act of punishment but of security and military necessity. It serves the purpose of preventing combatants from continuing to take up arms against the United States”.19 While the Chairperson of the Working Group and the Special Rapporteur would not use the term “enemy combatant”, they share the understanding that any person having committed a belligerent act in the context of an international armed conflict and having fallen into the hands of one of the parties to the conflict (in this case, the United States) can be held for the duration of hostilities, as long as the detention serves the purpose of preventing combatants from continuing to take up arms against the United States. Indeed, this principle encapsulates a fundamental difference between the laws of war and human rights law with regard to deprivation of liberty. In the context of armed conflicts covered by international humanitarian law, this rule constitutes the lex specialis justifying deprivation of liberty which would otherwise, under human rights law as enshrined by article 9 of ICCPR, constitute a violation of the right to personal liberty. 20. The United States justifies the indeterminate detention of the men held at Guantánamo Bay and the denial of their right to challenge the legality of the deprivation of liberty by classifying them as “enemy combatants”. For the reasons the Chairperson of the