56
proposition, since the United States, although it aided the contras financially, and otherwise,
was not held responsible for their acts (whereas on account of this financial and other
assistance to the contras, the United States was held by the Court to be responsible for
breaching the principle of non-intervention as well as “its obligation ?…g not to use force
against another State.” 158 This was clearly a case of responsibility for the acts of its own
organs).
131.
In order to attribute the acts of a military or paramilitary group to a State, it must be
proved that the State wields overall control over the group, not only by equipping and
financing the group, but also by coordinating or helping in the general planning of its
military activity. Only then can the State be held internationally accountable for any
misconduct of the group. However, it is not necessary that, in addition, the State should
also issue, either to the head or to members of the group, instructions for the commission of
specific acts contrary to international law.
132.
It should be added that courts have taken a different approach with regard to
individuals or groups not organised into military structures.
With regard to such
individuals or groups, courts have not considered an overall or general level of control to be
sufficient, but have instead insisted upon specific instructions or directives aimed at the
commission of specific acts, or have required public approval of those acts following their
commission.
133.
The Appeals Chamber will mention, first of all, the United States Diplomatic and
Consular Staff in Tehran case. 159 There, the International Court of Justice rightly found that
the Iranian students (who did not comprise an organised armed group) who had stormed the
United States embassy and taken hostage 52 United States nationals, had not initially acted
Ireland (SCOR, 2374th Meeting of 5 June 1982, paras. 35-36) and of Israel (ibid., paras. 74-78 and SCOR,
2375th Meeting of 6 June 1982, paras. 22-67) and in July-August 1982 (see the statement of Israel, SCOR,
2385th Meeting of 29 July 1982, paras. 144-169)); see also the debates on the South African raid in Lesotho in
December 1982 (see in particular the statements of France (SCOR, 2407th Meeting of 15 December 1982,
paras. 69-80), of Japan (ibid., paras. 98-107), of South Africa (SCOR, 2409th Meeting of 16 December 1982,
paras. 126-160) and of Lesotho (ibid., paras. 219-227)).
Although there does not seem to exist any international practice in this area, it may happen that a State simply
providing economic and military assistance to a military group (hence not necessarily exercising effective
control over the group) directs a member of the group or the whole group to perform a specific internationally
wrongful act, e.g. an international crime such as genocide. In this case one would face a situation similar to
that described above, in the text, of a State issuing specific instructions to an individual.
158
See Nicaragua, paras. 239-249, 292(3) and 292(4).
Case No.: -94-1-A
15 July 1999