Overall Control vs.

Effective Control

Terrorist groups who are not state organs but who are supported and directed by a state become de
facto agents of that state.

The essential difference between the Nicaragua and tadie case lies merely in the degree of control, not
in the kind of control. The icty still asserted that the state should have control “going beyond the mere
financing and equipping of such forces and involving also participation in the planning and supervison of
military operations.

EFFECTIVE CONTROL

one for acts performed by private individuals engaged by a state to perform specific illegal acts in the
territory of another state (or for individuals commissioned to carry out legal actions, who act however
ultra vires breaching international law); for such actions specific instructions concerning the
performance of each action were required in order to attribute the action to the instructing state, or
else subsequent public approval of each specific action or conduct was required; this was clearly the
‘effective control’ test set out by the ICJ in Nicaragua . The Appeals Chamber showed that this test was
based on state practice, which however supported its applicability solely in instances of single
individuals acting on behalf of a state.

OVERALL CONTROL

Another degree of control over actions by organized and hierarchically structured groups , such as
military or paramilitary units; in this case overall control by the state over the group was sufficient,
hence specific instructions were not required for each individual operation. Such ‘overall control’
resided not only in equipping, financing or training and providing operational support to the group, but
also in coordinating or helping in the general planning of its military or paramilitary activity