94 United Nations Convention Against Torture and its Optional Protocol ‘make particular efforts to prevent its security forces from acting as a State within a State, for they seem to escape control by superior authorities’167 and that all provisions of the Convention, including those of Article 2 (2) ‘are implemented strictly by all State authorities’.168 3.5 Prohibition of Defence of Obedience to Superior Orders in Domestic Criminal Proceedings 65   While Article 2(2) is primarily directed at Governments not to derogate from their obligations to respect and to ensure the absolute prohibition of torture even in exceptional circumstances (no justification of torture by the Government, in particular the legislative and executive branch), Article 2(3) is primarily directed at criminal courts not to accept any defence by the accused based on a superior order (no justification of torture by the judicial branch in individual cases). This aspect was most clearly expressed in Article V of the IAPL draft: ‘The fact that a person was acting in obedience to superior orders shall not be a defence to a charge of torture’.169 But the final text is based on the original Swedish draft which did not refer explicitly to criminal proceedings. 66  As with Article 2(2), a US proposal to delete the reference to cruel, inhuman or degrading treatment or punishment from the Swedish draft during the negotiations of the Convention has been adopted, seemingly without much discussion.170 The legal consequences of this deletion might be serious and at the same time confusing. States certainly can use the argumentum a contrario, ie that an order from a superior officer or a public authority may be invoked as a justification of cruel, inhuman or degrading treatment. This would mean, to give a concrete example, that US military officers, by applying the infamous interrogation methods authorized by Defence Secretary Donald Rumsfeld for suspected terrorists detained at Guantánamo Bay, could invoke an order by a superior officer to apply these methods in a particular case only if such methods are legally qualified as cruel, inhuman or degrading treatment. If these methods are, however, considered as torture, the officer could not invoke the order and would have to be sentenced for having committed a crime. How should the military officer know whether the superior’s interrogation methods amount to torture or ‘only’ cruel, inhuman or degrading treatment if up to the present day there is an ongoing dispute as to how to qualify them?171 Since both torture and cruel, inhuman or degrading treatment is absolutely prohibited under general international law, would such an interpretation not seriously undermine the absolute prohibition of cruel, inhuman or degrading treatment? Although the obligation of States parties under Article 4 CAT to stop impunity only applies to torture and not to cruel, inhuman or degrading treatment, this interpretation of Article 2(3) sends the dangerous message that even in countries which criminalize cruel, inhuman or degrading treatment, such treatment can be practised with impunity as long as it has been ordered by a superior. It, therefore, must be concluded that the deletion of the reference to cruel, inhuman or degrading treatment in Article 2(3) seriously weakened the absolute prohibition of cruel, inhuman or degrading treatment. But since it was deliberately deleted   CAT, ‘Report of the Committee Against Torture’ (1996) UN Doc A/​51/​44, paras 211 and 212. 169 170   A/​51/​44 (n 167) paras 180–​222.   See above 2.1.   See above 2.2. 171   See the report of five UN experts on the situation of detainees at Guantánamo Bay, ‘Situation of detainees at Guantánamo Bay: Summary’ (2006) UN Doc E/​CN.4/​2006/​120; see also Nowak, ‘What Practices Constitute Torture?’ (n 163). 167 168 Zach