Article 2. Obligation to Prevent Torture 77 This was the first time that this principle of respondeat superior had been included in a human rights treaty and therefore also the first time that this principle was rejected as a justification for torture in a human rights treaty. During the drafting there was discussion as to the possibility of whether the order of a superior, although not being a justification, could still be an extenuating fact justifying a milder penalty in line with Article 8 of the Nuremberg Charter.22 In written comments the United States noted that although orders from a superior officer cannot justify torture, it is a factor that should be considered in mitigation of punishment and proposed the following new Article 4: 1. No exceptional circumstances whatsoever, whether a state or threat of war, internal political instability or any other public emergency may be invoked as a justification for torture. 2. An order from a superior officer or a public authority may not be invoked as a justification for torture.23 15  During the 1979 Working Group discussions one (unidentified) delegate proposed the addition to paragraph 3 of a provision indicating that superior orders may be considered in mitigation of punishment if justice so requires. At the same time one (unidentified) delegate expressed his reservation about this paragraph. It was agreed to include the addition in brackets for consideration by the Commission on Human Rights.24 Following discussion in the 1980 Working Group it was decided that the wording in square brackets should be deleted in Article 2(3).25 There is nothing in the records that indicates what was actually said. Burgers and Danelius are also silent on this point. It is interesting to note that the ILC, in its formulation of the Nuremberg Principles, had deleted the sentence that dealt with the mitigation of punishment in Principle IV, regarding the reference to ‘mitigation of punishment’ as unnecessary.26 Principle IV was adopted as ‘[t]‌he fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible for him’.27 In its report to the General Assembly the ILC explained that the question of leniency in punishment should be determined by a competent court during the sentencing process, stating that the text was based on the principle contained in Article 8 of the Charter of the Nuremberg Tribunal. 3.  Issues of Interpretation 3.1 The Obligation to Take Effective Measures to Prevent Torture 3.1.1 Scope of Application 16  The Convention, strictly speaking, does not prohibit torture or cruel, inhuman or degrading treatment. A provision stating that no one shall be subjected to torture and cruel, inhuman or degrading treatment, as contained in Article 7 CCPR and similar   The same principle could be found later in Art 7(3) and (4) of the ICTY Statute. 24   E/​CN.4/​1314 (n 6) para 53.   E/​CN.4/​L.1470 (n 7) para 35. 25   Report of the Working Group of the Commission on Human Rights (1980) UN Doc E/​CN.4/​1367, para 13. 26   See International Law Commission (ILC) Yearbook, Vol 1 (1950), 288. See Ahcene Boulesbaa, The UN Convention on Torture and the Prospects for Enforcement (Martinus Nijhoff 1999) 84, n 165. 27   See International Law Commission Yearbook, Vol 2 (1950) 375. See Boulesbaa (n 26) 84, n 167. 22 23 Zach