41 101. As is apparent, and as was rightly stressed by Trial Chamber II in Rajic 120 and restated by the Prosecution in the instant case, 121 the issue brought before the International Court of Justice revolved around State responsibility; what was at stake was not the criminal culpability of the contras for serious violations of international humanitarian law, but rather the question of whether or not the contras had acted as de facto organs of the United States on its request, thus generating the international responsibility of that State. (i) Two Preliminary Issues 102. Before examining whether the Nicaragua test is persuasive, the Appeals Chamber must deal with two preliminary matters which are material to our discussion in the instant case. 103. First, with a view to limiting the scope of the test at issue, the Prosecution has contended that the criterion for ascertaining State responsibility is different from that necessary for establishing individual criminal responsibility. In the former case one would have to decide whether serious violations of international humanitarian law by private individuals may be attributed to a State because those individuals acted as de facto State officials. In the latter case, one would have instead to establish whether a private individual may be held criminally responsible for serious violations of international humanitarian law amounting to “grave breaches”. 122 Consequently, it has been asserted, the Nicaragua test, while valid within the context of State responsibility, is immaterial to the issue of individual criminal responsibility for “grave breaches”. The Appeals Chamber, with respect, does not share this view. 104. What is at issue is not the distinction between the two classes of responsibility. What is at issue is a preliminary question: that of the conditions on which under international law an individual may be held to act as a de facto organ of a State. Logically these conditions must be the same both in the case: (i) where the court’s task is to ascertain whether an act performed by an individual may be attributed to a State, thereby generating 120 See “Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence”, The Prosecutor v. Ivica Raji}, Case No.: IT-95-12-R61, Trial Chamber II, 13 September 1996, para. 25. 121 Cross-Appellant’s Brief, paras. 2.14-2.17. 122 Cross-Appellant’s Brief, paras. 2.16-2.17; Cross-Appellant’s Brief in Reply, para. 2.19. Case No.: -94-1-A 15 July 1999