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examine the notion of control by a State over individuals, laid down in general international
law, for the purpose of establishing whether those individuals may be regarded as acting as
de facto State officials. This notion can be found in those general international rules on
State responsibility which set out the legal criteria for attributing to a State acts performed
by individuals not having the formal status of State officials.
(c) The Notion of Control Set Out By the International Court of Justice in Nicaragua
99.
In dealing with the question of the legal conditions required for individuals to be
considered as acting on behalf of a State, i.e., as de facto State officials, a high degree of
control has been authoritatively suggested by the International Court of Justice in
Nicaragua.
100.
The issue brought before the International Court of Justice was whether a foreign
State, the United States, because of its financing, organising, training, equipping and
planning of the operations of organised military and paramilitary groups of Nicaraguan
rebels (the so-called contras) in Nicaragua, was responsible for violations of international
humanitarian law committed by those rebels. The Court held that a high degree of control
was necessary for this to be the case. It required that (i) a Party not only be in effective
control of a military or paramilitary group, but that (ii) the control be exercised with respect
to the specific operation in the course of which breaches may have been committed. 118 The
Court went so far as to state that in order to establish that the United States was responsible
for “acts contrary to human rights and humanitarian law” allegedly perpetrated by the
Nicaraguan contras, it was necessary to prove that the United States had specifically
“directed or enforced” the perpetration of those acts. 119
determining when individuals who, formally speaking, are not military officials of a State may nevertheless be
regarded as forming part of the armed forces of such a State.
118
Nicaragua, para. 115. As the Court put it, there must be “effective control of the military or paramilitary
operations in the course of which the alleged violations ?of international human rights and humanitarian lawg
were committed”.
119
Ibid., para. 115:
“All the forms of United States participation mentioned above, and even the general control by the
respondent State over a force with a high degree of dependency on it, would not in themselves mean,
without further evidence, that the United States directed or enforced the perpetration of the acts
contrary to human rights and humanitarian law alleged by the applicant State.”
Case No.: -94-1-A
15 July 1999