156 20. On the more general question whether Nicaragua was correct in its holding on the subject of the responsibility of a state for the delictual acts of a foreign military force, it may be that there is room for reviewing that case. The case may be interpreted to mean that a state could be using force through a foreign military entity without being responsible for any delictual acts committed by that entity otherwise than on the specific instructions of the state.In opposition to a theory based on the need for proof of specific instructions, it may be useful to consider whether there is meritin the argument that, by deciding to use force through an entity, a state places itself under an obligation of due diligence to ensure that such use does not degenerate into such breaches, as it can. However, I am not persuaded that it is necessary to set out on that inquiry for the purposes of this case, no issue being involved of state responsibility for another’s breaches of international humanitarian law. 21. For these reasons, although I appreciate the general tendency of the judgement of the Appeals Chamber, I would respectfully reserve my position on the new test proposed. 5. The Position of the Prosecution on the Applicability of Nicaragua 22. The prosecution argues that Nicaragua is not relevant. It makes two points. First, it says that Nicaragua was concerned with the responsibility of a state for delictual acts of third parties, and not with the criminal responsibility of the individual. I am of the view, however, that, whatever the context, what constitutes a use of force (a necessary element of an “armed conflict”) is so fundamental as to require constancy of principle. The distinction between the responsibility of a state and the criminal responsibility of the individual is interesting; but it is not of assistance on the question what constitutes a use of force. That is a concept of common currency in international law. 23. Second, the prosecution submits that Nicaragua did not enquire into whether the conflict was internal or international for the purposes of the Geneva Conventions of 1949. In its view, the Court found it unnecessary to do so, considering that, by virtue of common article 3 of the Geneva Conventions, the issues were determinable by reference to customary international law relating to the applicability of minimum humanitarian principles to the use of force, whether in the course of an international armed conflict or in the course of an internal one. That was so, with the consequence that it was not necessary for the Court to determine whether the Geneva Conventions, as such, were