42 the international responsibility of that State; and (ii) where the court must instead determine whether individuals are acting as de facto State officials, thereby rendering the conflict international and thus setting the necessary precondition for the “grave breaches” regime to apply. In both cases, what is at issue is not the distinction between State responsibility and individual criminal responsibility. Rather, the question is that of establishing the criteria for the legal imputability to a State of acts performed by individuals not having the status of State officials. In the one case these acts, if they prove to be attributable to a State, will give rise to the international responsibility of that State; in the other case, they will ensure that the armed conflict must be classified as international. 105. As stated above, international humanitarian law does not include legal criteria regarding imputability specific to this body of law. Reliance must therefore be had upon the criteria established by general rules on State responsibility. 106. The second preliminary issue relates to the interpretation of the judgement delivered by the International Court of Justice in Nicaragua. According to the Prosecution, in that case the Court applied “both an ‘agency’ test and an ‘effective control’ test”. 123 In the opinion of the Prosecution, the Court first applied the “agency” test when considering whether the contras could be equated with United States officials for legal purposes, in order to determine whether the United States could incur responsibility in general for the acts of the contras. According to the Prosecution this test was one of dependency, on the one side, and control, on the other. 124 In the opinion of the Prosecution, the Court then applied the “effective control” test to determine whether the United States could be held responsible for particular acts committed by the contras in violation of international humanitarian law. This test hinged on the issuance of specific directives or instructions concerning the breaches allegedly committed by the contras. 125 123 Cross-Appellant’s Brief, para. 2.56. According to the Prosecution (Cross-Appellant’s Brief, para. 2.58), the Court applied the “agency” test when considering whether the contras engaged the responsibility of the United States. The Prosecution has pointed out that in this regard the Court “did not refer to the need for effective control, but rather” – to quote the words of the Court cited by the Prosecution – “whether or not the relationship ?…g was so much one of dependency on the one side and control on the other that it would be right to equate the contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government” (Nicaragua, para. 109). 125 Cross-Appellant’s Brief, paras. 2.57-2.58. 124 Case No.: -94-1-A 15 July 1999