45 contras. It was primarily with regard to the contras that the Court asked itself on what conditions individuals without the status of State officials could nevertheless engage the responsibility of the United States as having acted as de facto State organs. It was with respect to the contras that the Court developed the doctrine of “effective control”. 110. At one stage in the judgement, when dealing with the contras, the Court appeared to lay down a “dependence and control” test: What the Court has to determine at this point is whether or not the relationship of the contras to the United States government was so much one of dependence 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.133 111. The Prosecution, and Judge McDonald in her dissent, argue that by these words the Court set out an “agency test”. According to them, the Court only resorted to the “effective control” standard once it had found no agency relationship between the contras and the United States to exist, so that the contras could not be considered organs of the United States. The Court, according to this argument, then considered whether specific operations of the contras could be attributed to the United States, and the standard it adopted for this attribution was the “effective control” standard. 112. The Appeals Chamber does not subscribe to this interpretation. Admittedly, in paragraph 115 of the Nicaragua judgement, where “effective control” is mentioned, it is unclear whether the Court is propounding “effective control” as an alternative test to that of “dependence and control” set out earlier in paragraph 109, or is instead spelling out the requirements of the same test. The Appeals Chamber believes that the latter is the correct interpretation. In Nicaragua, in addition to the “agency” test (properly construed, as shall be seen in the next paragraph, as being designed to ascertain whether or not an individual has the formal status of a State official), the Court propounded only the “effective control” test. This conclusion is supported by the evidently stringent application of the “effective control” test which the Court used in finding that the acts of the contras were not imputable to the United States. 132 133 Ibid., para. 86. Ibid., para. 109 (emphasis added). Case No.: -94-1-A 15 July 1999