Article 2. Obligation to Prevent Torture
95
upon proposal of the United States, there seems to be no other meaningful interpretation
in line with the clear wording of this provision, read in conjunction with Article 16 CAT.
Whether this interpretation is in line with the object and purpose of the Convention is
highly doubtful but not relevant for the interpretation in accordance with the respective
rules of the VCLT.
67 The prohibition to invoke a superior order as a defence in criminal proceedings goes back to Article 8 of the Charter of the International Military Tribunal of
Nuremberg.172 It was also adopted in Article 33 of the Rome Statute of the ICC, which
provides that a superior order shall not relieve the defendant of criminal responsibility
unless the person was under a legal obligation to obey orders of the Government or the
superior in question; the person did not know that the order was unlawful; and the order
was not manifestly unlawful.173
68 According to Article 7(1)(f ) of the ICC Statute, torture qualifies as a crime against
humanity ‘when committed as part of a widespread or systematic attack directed against
any civilian population, with knowledge of the attack’. In such circumstances, an order
to practise torture is by definition ‘manifestly unlawful’. Consequently, such order cannot
relieve the defendant of his or her criminal responsibility even if he or she was under a
legal obligation to obey this order and did not know that the order was unlawful.
69 Article 2(3) CAT goes beyond Article 33 of the ICC Statute in so far as it applies also to individual cases of torture and does not provide for any exception. In other
words, a legal obligation to obey orders and lack of knowledge that an order to practise
torture is unlawful does not relieve the defendant of criminal responsibility. Article 2(3)
simply states that no order from a superior whatsoever may be invoked as a justification
of torture.
70 In its Concluding Observations, the Committee repeatedly stressed that Article 2(3)
allows for no exception, that its provisions must be incorporated or transformed into
domestic criminal law, that any domestic provision to the contrary must be abolished,
and that the provision needs to be effectively implemented.174 Subordinates are thus to
be held accountable individually in case of acts of torture that were committed. The
issue was discussed in 1989 in relation to the well-known individual cases of ORM, MM
and MS v Argentina, in which relatives of Argentine citizens, who were allegedly tortured to death by Argentine military authorities during the ‘dirty war’ in 1976, claimed
that the infamous ‘Full Stop Law’ [Ley de Punto Final] of December 1986 and ‘Due
Obedience Act’ [Ley de Obediencia Debida] of June 1987 violated various provisions of
the Convention.175 The obligations of Argentina under Article 2(3) CAT were allegedly
violated by the Due Obedience Act, which presumed, without admitting proof to the
contrary, that those persons who held lower military ranks at the time the crimes were
committed were acting under superior orders. Although the Committee had to declare
these complaints inadmissible ratione temporis, it expressed, in a strongly worded obiter
See above n 23; Burgers and Danelius (n 14) 124.
Article 33(2) specifies that for the purposes of this article, ‘orders to commit genocide or crimes against
humanity are manifestly unlawful’. See eg the critical remarks by Paola Gaeta, ‘The Defence of Superior
Orders: The Statute of the International Criminal Court versus Customary International Law’ (1999) 10
European Journal of International Law 172; but see Charles Garraway, ‘Superior Orders and the International
Criminal Court: Justice Delivered or Justice Denied’ (1999) 836 International Review of the Red Cross 785.
174
CAT/C/GC/2 (n 1) para 26. Also see Lebanon inquiry procedure, para 38, CAT/C/MRT/CO/1 (n
60) para 12; CAT/C/MAR/CO/4 (n 72) para 6. See also Ingelse (n 28) 266ff.
175
See above 3.2.
172
173
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