Guantanamo and the Boundaries of Legal Advice: A Case for Adhering to Authoritative
Interpretation
Jéssica Aplugi Pinto
s3081303
Word Count: 1000
1. Introduction
In 2002, Staff Judge Advocate Diane Beaver was asked to assess the legality of the
proposed ‘counter-resistance strategies’ aimed at detainees at Guantanamo Bay who were
resisting other interrogation efforts.1 While having limited experience in this field,2 Beaver
controversially stated that the Geneva Conventions were not applicable in this situation as the
detainees were not ‘Enemy Prisoners of War (EPW)’. 3 Her view differed significantly from
those of the International Committee of the Red Cross (ICRC) and the International Criminal
Tribunal for the Former Yugoslavia (ICTY) to protect all persons in enemy custody, regardless
of their status as ‘unlawful combatants’, and affirming the applicability of at least Common
Article 3.4
The question arises whether a legal adviser’s views may differ from the positions of these
authoritative sources, especially in the case of Beaver’s advice on the ‘counter-resistance
strategies’.5 This paper begins analyzing authoritative interpretations (Section 2), then
examines their importance for legal certainty (Section 3), and finally considers whether
principled divergence can support legal development (Section 4). Ultimately, this paper
argues that while legal advisers may offer interpretations that diverge from the ICRC or
international courts, such divergence must be carefully justified.
1
Memorandum from Diane E Beaver to Commander, Joint Task Force 170 (11 October 2002) Re: Legal Review of
Aggressive Interrogations Techniques, in Karen J Greenberg and Joshua L Dratel (eds), The Torture Papers: The Road to Abu
Ghraib (1st edn, Cambridge University Press 2005) 226. See also Memorandum from US Army General James T Hill to
General Richard Myers, Chairman of the Joint Chiefs of Staff (25 October 2002) Re: Counter-Resistance Techniques, in
Karen J Greenberg and Joshua L Dratel (eds), The Torture Papers: The Road to Abu Ghraib (1st edn, Cambridge University
Press 2005) 223.
2
Philippe Sands, ‘Torture Team: The Responsibility of Lawyers for Abusive Interrogation’ (2008) 9 Melbourne Journal of
International Law 365, 371-72.
3
Memorandum from Diane E Beaver to Commander, Joint Task Force 170 (11 October 2002) Re: Legal Brief on the
Proposed Counter-Resistance Strategies, in Karen J Greenberg and Joshua L Dratel (eds), The Torture Papers: The Road to
Abu Ghraib (1st edn, Cambridge University Press 2005) 229.
4
‘Background Paper on Geneva Conventions and Persons Held by U.S. Forces’ (Human Rights Watch Press Backgrounder,
January 29 2002) para 1, fn 1, available at www.hrw.org/legacy/backgrounder/usa/pow-bck.pdf.
5
See eg Linus Mührel, The Authority of the International Committee of the Red Cross: Determining What International
Humanitarian Law Is (International Humanitarian Law Series, vol 68, Brill/Nijhoff 2024) 53.
, 2. Authoritative Legal Interpretations
Governments are bound by international law. The legal adviser’s role is to counsel their
governments on their obligations under international law.6 Views of international courts and
the ICRC – when it comes to international humanitarian law (IHL) – contribute to the
interpretation of this binding law.7 It therefore seems that legal advisers should not diverge
from these authoritative views to ensure consistency and legitimacy in interpreting
international legal obligations.
The evolution of IHL has been strongly shaped by the work of the ICRC, which aims to
protect and aid victims of armed conflict.8 Despite lacking binding legal authority and
uncertainty regarding the ICRC’s status within international law, the ICRC holds a ‘de facto
authority’ to interpret and determine international humanitarian law. 9 In addition, while
interpretations of international law by courts and tribunals also lack general binding force,
they are seen as ‘subsidiary means for the determination of rules of law’, and can therefore
carry significant authoritative weight.10 For example, a useful tool for legal advisers in this
context is the ‘ICJ test’, which involves considering how the International Court of Justice
would decide the matter if it were brought before it. 11 Such a tool may be even more important
since governments’ actions often cannot be judged by an international court.12
Beaver’s assessment of the ‘counter-resistance strategies’ overlooked the ICRC and
ICTY’s clear stance that Geneva Convention protections, especially under Common Article 3,
apply to all detainees in armed conflict. 13 This omission weakened the legal basis of her
advice and risked legitimizing unlawful treatment. Ultimately, following these authoritative
interpretations ensures legal advice aligns with international law and supports state
compliance, which belong to the primary roles of a government lawyer.14
6
Jean-Pierre Gauci and Kate Jones, ‘Conference Report: The Role of Legal Advisers in International Law’ in Andraž Zidar &
Jean-Pierre Gauci (eds), The Role of Legal Advisers in International Law (Brill Nijhoff 2016) 373.
7
Mührel (n 5) 291.
8
ibid 1.
9
ibid 4, 53.
10
See Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 33 UNTS 993
(ICJ Statute) arts 38(1)(d) and 59.
11
David Anderson, ‘The Functions of the Legal Adviser: Advising, Negotiating, Litigating’ in Andraž Zidar & Jean-Pierre
Gauci (eds), The Role of Legal Advisers in International Law (Brill Nijhoff 2016) 19.
12
British Institute of International and Comparative Law (BIICL), The Role of Legal Advisers in International Law
(Conference Report, 26 February 2019) 5
<https://www.biicl.org/documents/570_the_role_of_legal_advisers_in_international_law_-
_conference_report_final26_feb.pdf?showdocument=1> accessed 4 May 2025.
13
‘Background Paper on Geneva Conventions and Persons Held by U.S. Forces’ (n 4) para 1, fn 1.
14
Michael Wood, ‘Legal Advisers’ in Andraž Zidar & Jean-Pierre Gauci (eds), The Role of Legal Advisers in International
Law (Brill Nijhoff 2016) 61, 64.
Interpretation
Jéssica Aplugi Pinto
s3081303
Word Count: 1000
1. Introduction
In 2002, Staff Judge Advocate Diane Beaver was asked to assess the legality of the
proposed ‘counter-resistance strategies’ aimed at detainees at Guantanamo Bay who were
resisting other interrogation efforts.1 While having limited experience in this field,2 Beaver
controversially stated that the Geneva Conventions were not applicable in this situation as the
detainees were not ‘Enemy Prisoners of War (EPW)’. 3 Her view differed significantly from
those of the International Committee of the Red Cross (ICRC) and the International Criminal
Tribunal for the Former Yugoslavia (ICTY) to protect all persons in enemy custody, regardless
of their status as ‘unlawful combatants’, and affirming the applicability of at least Common
Article 3.4
The question arises whether a legal adviser’s views may differ from the positions of these
authoritative sources, especially in the case of Beaver’s advice on the ‘counter-resistance
strategies’.5 This paper begins analyzing authoritative interpretations (Section 2), then
examines their importance for legal certainty (Section 3), and finally considers whether
principled divergence can support legal development (Section 4). Ultimately, this paper
argues that while legal advisers may offer interpretations that diverge from the ICRC or
international courts, such divergence must be carefully justified.
1
Memorandum from Diane E Beaver to Commander, Joint Task Force 170 (11 October 2002) Re: Legal Review of
Aggressive Interrogations Techniques, in Karen J Greenberg and Joshua L Dratel (eds), The Torture Papers: The Road to Abu
Ghraib (1st edn, Cambridge University Press 2005) 226. See also Memorandum from US Army General James T Hill to
General Richard Myers, Chairman of the Joint Chiefs of Staff (25 October 2002) Re: Counter-Resistance Techniques, in
Karen J Greenberg and Joshua L Dratel (eds), The Torture Papers: The Road to Abu Ghraib (1st edn, Cambridge University
Press 2005) 223.
2
Philippe Sands, ‘Torture Team: The Responsibility of Lawyers for Abusive Interrogation’ (2008) 9 Melbourne Journal of
International Law 365, 371-72.
3
Memorandum from Diane E Beaver to Commander, Joint Task Force 170 (11 October 2002) Re: Legal Brief on the
Proposed Counter-Resistance Strategies, in Karen J Greenberg and Joshua L Dratel (eds), The Torture Papers: The Road to
Abu Ghraib (1st edn, Cambridge University Press 2005) 229.
4
‘Background Paper on Geneva Conventions and Persons Held by U.S. Forces’ (Human Rights Watch Press Backgrounder,
January 29 2002) para 1, fn 1, available at www.hrw.org/legacy/backgrounder/usa/pow-bck.pdf.
5
See eg Linus Mührel, The Authority of the International Committee of the Red Cross: Determining What International
Humanitarian Law Is (International Humanitarian Law Series, vol 68, Brill/Nijhoff 2024) 53.
, 2. Authoritative Legal Interpretations
Governments are bound by international law. The legal adviser’s role is to counsel their
governments on their obligations under international law.6 Views of international courts and
the ICRC – when it comes to international humanitarian law (IHL) – contribute to the
interpretation of this binding law.7 It therefore seems that legal advisers should not diverge
from these authoritative views to ensure consistency and legitimacy in interpreting
international legal obligations.
The evolution of IHL has been strongly shaped by the work of the ICRC, which aims to
protect and aid victims of armed conflict.8 Despite lacking binding legal authority and
uncertainty regarding the ICRC’s status within international law, the ICRC holds a ‘de facto
authority’ to interpret and determine international humanitarian law. 9 In addition, while
interpretations of international law by courts and tribunals also lack general binding force,
they are seen as ‘subsidiary means for the determination of rules of law’, and can therefore
carry significant authoritative weight.10 For example, a useful tool for legal advisers in this
context is the ‘ICJ test’, which involves considering how the International Court of Justice
would decide the matter if it were brought before it. 11 Such a tool may be even more important
since governments’ actions often cannot be judged by an international court.12
Beaver’s assessment of the ‘counter-resistance strategies’ overlooked the ICRC and
ICTY’s clear stance that Geneva Convention protections, especially under Common Article 3,
apply to all detainees in armed conflict. 13 This omission weakened the legal basis of her
advice and risked legitimizing unlawful treatment. Ultimately, following these authoritative
interpretations ensures legal advice aligns with international law and supports state
compliance, which belong to the primary roles of a government lawyer.14
6
Jean-Pierre Gauci and Kate Jones, ‘Conference Report: The Role of Legal Advisers in International Law’ in Andraž Zidar &
Jean-Pierre Gauci (eds), The Role of Legal Advisers in International Law (Brill Nijhoff 2016) 373.
7
Mührel (n 5) 291.
8
ibid 1.
9
ibid 4, 53.
10
See Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 33 UNTS 993
(ICJ Statute) arts 38(1)(d) and 59.
11
David Anderson, ‘The Functions of the Legal Adviser: Advising, Negotiating, Litigating’ in Andraž Zidar & Jean-Pierre
Gauci (eds), The Role of Legal Advisers in International Law (Brill Nijhoff 2016) 19.
12
British Institute of International and Comparative Law (BIICL), The Role of Legal Advisers in International Law
(Conference Report, 26 February 2019) 5
<https://www.biicl.org/documents/570_the_role_of_legal_advisers_in_international_law_-
_conference_report_final26_feb.pdf?showdocument=1> accessed 4 May 2025.
13
‘Background Paper on Geneva Conventions and Persons Held by U.S. Forces’ (n 4) para 1, fn 1.
14
Michael Wood, ‘Legal Advisers’ in Andraž Zidar & Jean-Pierre Gauci (eds), The Role of Legal Advisers in International
Law (Brill Nijhoff 2016) 61, 64.
