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The extent of the requisite State control varies. "In sum, the Appeals Chamber holds the view that international rules do not always require the same degree of control over armed groups or private individuals for the purpose of determining whether an individual not having the status of a State official under internal legislation can be regarded as a de facto organ of the State. The test adopted by the Tadić Appeals Chamber for control over subordinate military forces is the one we use and we refer to it as the "overall control" test: "The Appeals Chamber thus considers that the Third Geneva Convention, by providing in Article 4 the requirement of 'belonging to a Party to the conflict', implicitly refers to a test of control." In order to determine whether a conflict which involves different forces from within the same state fighting each other should be regarded as international, the Appeals Chamber of the ICTY in Tadić focused on the international law doctrine of state responsibility: In addition, in case of an internal armed conflict breaking out on the territory of a State, it may become international (or depending upon the circumstances, be international in character alongside an internal armed conflict) if (i) another State intervenes in that conflict through its troops, or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of that other State." "It is indisputable that an armed conflict is international if it takes place between two or more States. In the words of the Appeals Chamber in the Tadić Appeals Judgment, Existence of an "international armed conflict" Accordingly, a single act could also amount to a war crime within the jurisdiction of the Court if it was committed in the context of and was associated with an armed conflict." ġ.1.

The article therefore does not articulate a strict requirement for the exercise of the Court’s jurisdiction over war crimes only in these circumstances, but only gives "a particular guideline for the Court". "Furthermore, article 8(1) of the Statute states that the Court "shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes". In the Mbarushimana Decision on the Confirmation of Charges, the Pre-Trial Chamber held that: The conduct took place in the context of and was associated with an international armed conflict.