Article 2. Obligation to Prevent Torture 97 The ILC felt that the reference to mitigation of punishment was unnecessary and, therefore, deleted it from the text. But it reported to the General Assembly that the question of leniency in punishment should be determined by a competent court during the sentencing process. Boulesbaa takes this parallel situation as a basis for concluding that the ‘mitigation of punishment for carrying out superior orders is applicable to this Convention’.185 Burgers and Danelius also state that mitigation of punishment ‘cannot be excluded’ but warn, however, that ‘it would be contrary to the spirit of the Convention if the penalty was so lenient as not to take into account the very serious nature of the offence’.186 Ingelse finds a lighter punishment ‘reasonable considering the pressure to which a subordinate is subjected or his ignorance of the prohibition of respondeat superior’.187 It is to be noted that this interpretation is also supported by the wording of Article 2(3), which speaks of a ‘justification of torture’. While the acceptance of the defence of obedience to superior orders would provide a justification of torture by making it lawful, mitigating circumstances can only be applied at the stage of sentencing the defendant, ie after he or she has been found guilty of the crime of torture. In other words, mitigating circumstances do not justify torture and can, therefore, be applied if a perpetrator of torture convincingly argues that he or she was forced to apply torture practices and had no real moral choice.188 On the other hand, Burgers and Danelius are certainly right that obedience to superior orders should not be used as an excuse and should never lead to lenient sentences.189 Gerrit Zach 186 187   Boulesbaa (n 26) 85.   Burgers and Danelius (n 14) 124.   Ingelse (n 28) 246.   The ILC, in adopting Principle IV of the Nuremberg Principles, referred to a ‘moral choice’ instead of mitigating circumstances. See Boulesbaa (n 26) 84. 189   See in this respect also, mutatis mutandis, the case of Guridi v Spain, No 212/​2002 (n 39); above 3.1.2.6. 185 188 Zach