60 achieve its territorial enlargement through the armed forces which it controls, it may be easier to establish the threshold. 141. It should be added that international law does not provide only for a test of overall control applying to armed groups and that of specific instructions (or subsequent public approval), applying to single individuals or militarily unorganised groups. The Appeals Chamber holds the view that international law also embraces a third test. This test is the assimilation of individuals to State organs on account of their actual behaviour within the structure of a State (and regardless of any possible requirement of State instructions). Such a test is best illustrated by reference to certain cases that deserve to be mentioned, if only briefly. 168 142. The first case is Joseph Kramer et al. (also called the Belsen case), brought before a British military court sitting at Luneburg (Germany). 169 The Defendants comprised not only some German staff members of the Belsen and Auschwitz concentration camps but also a number of camp inmates of Polish nationality and an Austrian Jew “elevated by the camp administrators to positions of authority over the other internees”. They were inter alia accused of murder and other offences against the camp inmates. According to the official report on this case: In meeting the argument that no war crime could be committed by Poles against other Allied nationals, the Prosecutor said that by identifying themselves with the authorities the Polish accused had made themselves as much responsible as the S.S. themselves. Perhaps it could be claimed that by the same process they could be regarded as having approximated to membership of the armed forces of Germany.170 143. Another case is more recent. This is the judgement handed down by the Dutch Court of Cassation on 29 May 1978 in the Menten case. 171 Menten, a Dutch national who was not formally a member of the German forces, had been accused of war crimes and crimes against humanity for having killed a number of civilians, mostly Jews, in Poland, on 168 These cases, although they concern war crimes (the notion of “grave breaches” had not yet come into existence at the time), are nevertheless relevant to our discussion. Indeed, they provide useful indications concerning the conditions on which civilians may be assimilated to State officials. 169 Trial of Joseph Kramer and 44 Others, British Military Court, Luneberg, 17th September-17th November, 1945, Law Reports of Trials of War Criminals, Selected and Prepared by the United Nations War Crimes Commission, Published for the United Nations War Crimes Commission by His Majesty’s Stationary Office, London 1947 (“UNWCC”), vol. II, p. 1. 170 Ibid., p. 152 (emphasis added) (the Austrian civilian, Schlomowicz, was not found guilty). See also ibid., p. 109. Most of the accused civilians were found guilty and sentenced to imprisonment. It is clear from this case that according to the court, by acting as de facto members of the German apparatus running the Belsen concentration camp, the Polish civilians could be assimilated to German State officials. Case No.: -94-1-A 15 July 1999