96 United Nations Convention Against Torture and its Optional Protocol dictum, its concern that ‘it was the democratically elected post-​military authority that enacted the Punto Final and the Due Obedience Act’. The Committee deemed this ‘to be incompatible with the spirit and purpose of the Convention’ and urged the Argentine Government not to leave the victims of torture and their dependents wholly without a remedy.176 In 2004 the Committee welcomed with satisfaction the promulgation of an Act No. 25.779 in September 2003, declaring the ‘Due Obedience’ and ‘Clean Slate’ Acts absolutely null and void.177 71  The Committee has also emphasized that States parties should establish a system to protect subordinates from reprisals, if they refuse to execute an order from a superior in violation of the Convention or cooperate in the investigation of torture or ill-​treatment, including by superior officials.178 At the same time, those who exercise superior authority—​including public officials—​are to be held fully accountable for torture or ill-​treatment committed by subordinates if they knew or should have known about the conduct of their subordinates and failed ‘to take reasonable and necessary preventive measures’.179 The Committee also emphasized that the responsibility of any superior officials, ‘whether for direct instigation or encouragement of torture or ill-​treatment or for consent or acquiescence therein’,180 has to be thoroughly, effectively, independently, and impartially investigated by prosecutorial and judicial authorities. Consequently, each State party should identify and report to the Committee any incidents of torture or ill-​treatment and the measures taken to investigate, punish, and prevent future incidents, ‘with particular attention to the legal responsibility of the both the direct perpetrators and officials in the chain of command, whether by acts of instigation, consent or acquiescence’.181 3.6 Superior Orders as a Reason for Mitigating Circumstances 72  During the drafting of Article 2(3) there was a 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. In 1979, the Working Group agreed to add a provision to Article 2(3) to the effect that superior orders may be considered in mitigation of punishment if justice so requires.182 But two years later, this phrase was deleted again by the Working Group without any explanation to be found in the travaux préparatoires.183 Was this phrase deleted because the Working Group found it unnecessary to state the obvious or must the deletion be interpreted as a sign that Article 2(3) CAT even prevents domestic criminal courts from taking superior orders into account as mitigating circumstances? 73  Boulesbaa refers in this context to the work of the ILC, which in its formulation of the Nuremberg Principles had taken the same approach as the Working Group.184 176   OR, MM, and MS v Argentina, No 1/​1988, 2/​1988, 3/​1988, UN Doc CAT/​C/​WG/​3/​DR/​1, 2 and 3/​ 1988, 23 November 1989, para 9. 177   CAT, ‘Concluding Observations: Argentina’ (2004) UN Doc CAT/​C/​CR/​33/​1, para 3(a). 178   CAT/​C/​GC/​2 (n 1) para 26; CAT/​C/​MRT/​CO/​1 (n 60) para 12, CAT/​C/​MCO/​CO/​4-​5 (n 117) para  8. 179 180   CAT/​C/​GC/​2 (n 1) para  26.   CAT/​C/​GC/​2 (n 1) para  26. 181   CAT/​C/​GC/​2 (n 1) para  7. 182   See E/​CN.4/​1347 (n 141) para 40. See also Boulesbaa (n 26) 83. 183   See E/​CN.4/​1475, para 53; Burgers and Danelius (n 14) 73; Boulesbaa (n 26) 84. See also above 2.2. 184  Boulesbaa (n 26)  84ff. See also ILC Yearbook, Vol I  (1950) 288; Yoram Dinstein, The Defence of Obedience to Superior Orders in International Law (Oxford University Press 1965) 226ff. Zach