§ 2. The prohibition of torture is absolute and non-derogable. While a large number of international instruments contain provisions that the exercise and enjoyment of rights and freedoms otherwise protected can be limited or restricted by States on specific grounds74, Article 2 §2 allows for no justification of torture in any circumstances.75 The list of exceptional circumstances referred to in the paragraph is not exhaustive. The drafters of the Convention used the word “whatsoever” to close the door to a construction of the Article which could lead to an interpretation that the exceptional circumstances referred to herein are exhaustive. What the drafters tried to say is that torture is not allowed even in time of “public emergency”, and they merely gave examples of circumstances which might otherwise give rise to it.76 § 3. In line with the absolute character of the ban on torture, an order from a superior officer or a public authority may not be invoked as justification of torture. The Nuremberg Principles had already established that to act under order was no justification for the perpetration of serious international crimes, among them torture77. This principle has thus been enshrined in the Convention. However, according to the general principles of international law established by the Charter of the Nuremberg and Tokyo Tribunals and their judgments, the fact that someone was under order to conduct an illegal act may be considered in mitigation of punishment. II. INDIVIDUAL ANALYSIS OF ARTICLES 1–16 OF THE CONVENTION 2. ANALYSIS OF SUBSTANTIVE PROVISIONS Article 6 of the Tokyo Charter provides as follows: 32 “Neither the official position, at any time of an accused, nor the fact that an accused acted pursuant to an order of his government or of a superior shall, of itself, be sufficient to free such accused from responsibility for any crime with which he is charged, but such circumstances may be considered in mitigation of punishment if the Tribunal determines that justice so requires.”78 These principles are well-established and were affirmed by the United Nations General Assembly in its Resolution 177(II).79 The same principles are found in the Statute of the International Tribunal for Rwanda80 and in the Statute of the International Criminal Tribunal for the Former Yugoslavia81. In contrast, the Rome Statute of the International Criminal Court deviates somewhat from the well-established principles by relieving a person acting pursuant to orders to commit a crime as defined in the Statute from criminal responsibility, when the person was under a legal obligation to obey orders of the government or a superior, or when the person did not know that the order was unlawful when the order was not manifestly unlawful.82 Nevertheless, Article 33 §2 clarifies that orders to commit genocide or crimes against humanity are manifestly unlawful.