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Now, what the hell does that mean?
Yeah, ain't that a hoot? But no matter how hard the people who have worked overtime to undermine that principle, especially in Israel and the U.S. where these groups seem to influence the most, whenever the Supreme Court of either country has taken up and ruled on the nitpicking and parsing, they have never failed to come down solidly on the side of humanity and the public conscience as being the essence of the Geneva Conventions.
You can see it in Israeli Supreme Court rulings against IDF torture and the massacres at Sabra and Shatilla, you can see it in the U.S. Supreme Court rulings in Hamdan and Boudemiene. So it must be consistent with, and even fundamental to, our constitutions, even if those who want to define a class of people as beyond law and humanity manage to torpedo ratification of those principles.
In a part of the Vienna treaty I didn't quote (Article 53), it states that if there is a conflict between jus cogens law and any treaty, that treaty is void at the time of signing. Note how the language prevents claims like the Bush people make that until it goes through the courts and gets ruled against, it's legal. These international law people have seen most of the Administration's excuses before, just not from the U.S. Prohibition of torture is considered jus cogens law. That's how strong the prohibition is. BTW, the Bush administration also tried to argue that the Convention Against Torture didn't apply anywhere that Geneva applied, in order to further the Feithian idea that inhumane treatment of people who violate the Geneva Conventions strengthens international humanitarian law.
Chapter 5 of The Torture Team discusses Douglas Feith's novel legal scholarship, as well as Philippe Sands' horror and shock listening to Feith expound it.
