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Last Year's List

Date Title Author Reference
***New***
October 2020
The UK Overseas Operations Bill: An Own Goal in the Making? Aurel Sari Just Security,
27 October 2020
This post examines the competing arguments, before turning to the duty the bill imposes on the secretary of state to consider derogating from the UK's human rights obligations during certain overseas deployments. It suggests that the prevailing view, which treats this duty as a minor issue of limited importance, overlooks both its legal significance and the extent to which it represents an own goal by the bill's drafters. The Overseas Operations Bill has sparked a passionate debate in Parliament and beyond. This reflects the importance of the issues at stake: fairness towards those who are tasked to defend the realm, justice for the victims of wrongdoing, and upholding the commitment to the rule of law. Sadly, but perhaps not surprisingly, this debate has seen a fair share of vilification and populism too. Many of those objecting to the bill in a constructive spirit acknowledge the problem the government is seeking to address, but chide it for going about it the wrong way. The government and its ministers would do well to listen to these voices more carefully.
Summary extracted by Aspals

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***New***
October
The UK's Overseas Operations Bill: Good Questions, Wrong Answers Michael Clarke RUSI,
7 October 2020
The UK government's attempt to shield its troops from vexatious litigation is laudable. The methods proposed are less so. The problem the government is trying to address in the Overseas Operations Bill is genuine and has undoubtedly affected morale in the armed forces as some individuals have had their lives turned upside down by open-ended investigations that dogged them, even years after their service. But many critics have pointed out that the balance of both parts of the Bill may well leave the individual service personnel in a worse situation. The problems need to be addressed from the other end of the process – on the battlefield rather than in the courts. The Bill distracts attention from the reality that the military got itself into so many legal scrapes in Iraq and Afghanistan because its own battlefield investigation procedures were sub-standard. This author is well aware of personal testimony from some of those responsible for investigating cases regarding the systemic obstruction they habitually encountered. A number of senior retired military chiefs, legal officials and ex-ministers have expressed deep disquiet at all the unintended consequences this Bill might have if it becomes law. Operating the established processes better should be a higher priority than changing the law, particularly one with so many international implications.
Summary extracted by Aspals

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***New***
October
Killing Qasem Soleimani: International Lawyers Divided and Conquered Luca Ferro Case Western Reserve Journal of International Law
vol. 53 (forthcoming in 2021)
,
October 6, 2020
The article is structured in two main parts. First, it sets out the facts surrounding the death of Soleimani as they have been widely reported by media outlets and relied upon by international legal experts. It then delves into the analysis by no less than fifteen of them who (co-)authored eleven legal briefs of varying depth. All such briefs tackle, to a more or lesser extent, the same overarching question: Was the killing of Soleimani by U.S. drone strikes in conformity with the relevant requirements of international law, consisting of the jus ad bellum (JAB), jus in bello (JIB) and international human rights law (IHRL)?
However, as noted above, there was little consensus among the experts – if any. The article hopes to better understand why international lawyers disagree so spectacularly by comparing and contrasting the variety of views in the Soleimani-case, and stripping down the supporting argumentation to uncover the underlying (theoretical and methodological) approach. That preliminary examination will be tackled in the article's second part. The root of the problem indeed appears to lie in a different methodological approach to the same issue, which includes relying on different sources and/or interpreting the same sources differently. Add to that the law's supposed indeterminacy, the absence of an authoritative arbiter, and contemporary academic idiosyncrasies, and it becomes clear(er) why each interpretation of international law is seemingly allowed to stand.
The article ends with some final reflections.
Summary extracted by Aspals

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***New***
October
Aggregated intensity: classifying coalitions of non-State armed groups Jelena Nikolic, Thomas de Saint Maurice & Tristan Ferraro Humanitarian Law and Policy,
October 7, 2020
With an ever-increasing number of non-State armed groups and a growing tendency for non-international armed conflicts (NIAC) to be fought by coalitions, it is crucial that our interpretation of international humanitarian law (IHL) continues to reflect realities on the ground.
In this post, ICRC legal advisors Jelena Nikolic, Thomas de Saint Maurice, and Tristan Ferraro suggest that in situations where there is evidence that non-State armed groups (NSAGs) have objectively and effectively adopted a collective approach to fighting against a common enemy, the intensity criterion required by IHL for determining the existence of a NIAC should be assessed on the basis of the aggregation of the military actions carried out between all the NSAGs fighting together and their common enemy, rather than requiring that each bilateral relationship of violence meets the criterion on its own.
Summary extracted by Aspals

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***New***
September
The UN Soleimani Report and the US Article 51 Notification Durward Johnson Articles of War,
Lieber Institute
24 September 2020
On July 9, 2020, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions released a report on the legality of targeted killing by drone strikes. The backdrop for the report is the US strike against Qasem Soleimani on January 2, 2020. And, in fact, although the report frames its contents in more general terms, it includes an extended case study on the legality of the Soleimani strike.
The report contains an interesting—and problematic—connection between the UN Charter's notification requirements for the use of force in self-defense under Article 51 and the lawfulness of the resort to self-defense itself. This article discusses the requirements for notification to the UN Security Council for acting in self-defense under Article 51 generally and considers whether the United States met those conditions in the specific case of Soleimani. In doing so, it emphasizes the two different legal obligations contained in Article 51—a State's duty to notify the Security Council when it has used force in self-defense and the legality of that use of self-defense.
Summary extracted by Aspals

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***New***
September 2020
Overseas Operations Bill John Larkin QC Policy Exchange,
Sep 23, 2020
The Bill has attracted considerable controversy, especially in relation to Part 1, which is entitled, not entirely accurately, Restrictions on prosecutions for certain offences. In our tradition, no person is above the law and UK forces are rightly subject to the rule of law, including service law, criminal law, and the law of armed conflict. It would be a cause for justified alarm if a Bill were to permit UK forces to breach this legal regime with impunity or otherwise to prevent prosecution for serious crimes. It is this concern that seems to animate the widely reported letter of September 16, sent to the Prime Minister by a number of distinguished former military commanders and law officers.
While aspects of the Bill are certainly open to criticism (and from a variety of perspectives) the Bill does not create, or come close to creating, de facto immunity for serving or former service personnel in respect of serious crimes. There is no lock, far less a triple lock, that would prevent the prosecution of service personnel for torturing people, no matter how bad the torture or how detailed the evidence.
Summary extracted by Aspals

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***New***
September
Proposed changes to British law could prevent armed forces from taking legal action against the government Professor James Sweeney The Conversation,
September 21, 2020
The Westminster parliament is currently considering one of the most ill-conceived and misleadingly presented pieces of legislation ever introduced. It purports to do something that it cannot while doing several things it should not. It severely limits the ability of members of the armed forces to hold the government to account when it fails to provide adequate equipment or fails to protect them while they are serving. It introduces time limits. Most importantly the bill makes no exception for claims by members of the armed forces themselves. This would drastically limit the options for bereaved families such as those who complained about the fatally inappropriate deployment of lightly armoured Snatch Land Rovers in very hostile settings.
The bill states that the prosecution of historical offences should be exceptional and gives judges a list of factors that they must consider. The bill cannot provide an absolute time limit for prosecutions or it would breach our international legal obligations to prosecute genocide, torture, and war crimes. In fact, even the bill as it currently stands is legally debatable in international law and has been accused of harming our international standing.
Summary extracted by Aspals

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***New***
September
The Duty to Derogate: Suspending Human Rights in a Very Limited and Specific Way? Aurel Sari EJIL:Talk,
18 September 2020
In the first decades of its existence, the ECHR did not exert much of a direct impact on the British armed forces. Cases relating to the activities and deployment of military personnel were rare. This changed during the mid-1990s. Aggrieved service personnel discovered that human rights litigation were an effective tool for challenging discriminatory policies and aspects of the military justice system. Thanks in no small part to the adoption of the Human Rights Act 1998, the volume of litigation involving British forces grew exponentially following their deployment to Afghanistan and Iraq. Compared to the earlier case-law, the Ministry of Defence now not only faced a growing number of claims touching on matters of operational significance, but the evolving jurisprudence of the European Court of Human Rights (ECtHR) also expanded the extra-territorial application of the Convention to an ever growing range of situations.
To many observers, the extension of human rights law onto the battlefield seemed like a category error. Imposing peacetime standards on combat operations was not just inappropriate and overly constraining, but it encouraged service personnel to challenge command decisions, thereby eroding trust in the chain of command and rendering commanders more risk-averse. In an influential paper published in 2013, Thomas Tugendhat and Laura Croft suggested that the extension of human rights and the broader judicialisation of warfare amounted to a deliberate legal assault on the armed forces. This paved the way for equating the concept of lawfare with the threat of human rights litigation, an overly narrow and not very helpful association that still endures in the minds of many in the UK.
Despite the long history of the idea, it is important to realise that this derogation strategy marks a shift in policy that comes with a significant trade-off.
Summary extracted by Aspals

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September Legislating by Soundbite: The Overseas Operations (Service Personnel and Veterans) Bill Elizabeth Stubbins Bates EJIL:Talk,
September 18, 2020
The Overseas Operations (Service Personnel and Veterans) Bill 2019-2021, if passed, would provide a 'triple lock' to render ‘exceptional' prosecutions for criminal offences allegedly committed by the armed forces overseas (outside the UK) more than five years ago; shorten the limitation periods for actions in tort and under the Human Rights Act; and impose a duty on future Secretaries of State for Defence to consider derogating from the European Convention on Human Rights (ECHR) before future overseas deployments. The Bill intends to reduce the extraterritorial ‘expansion' of the ECHR, while reasserting international humanitarian law's 'primacy', yet these soundbites are not made out. The Overseas Operations Bill does nothing to reduce the extraterritorial scope of the ECHR, and it undermines the enforcement of international humanitarian law.
Summary extracted by Aspals

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August 2020 Paid To Kill: An Examination Of The Evolution Of Combatants For Hire Joshua Duke Global Security,
6 August 2020
Throughout world history, as long as there has been conflict among people, there have been people willing to pay others to carry out violence. From assassins and mercenaries to bounty markers and paramilitary organizations, humans have found limitless ways to pay for their dirty work to be carried out by others. This process is one of the most common threads in human history and has been used by people in every position, of every origin, and in every location on the planet for thousands of years. The issue of pay for violence has entered the spotlight again in the modern age, as humanity moves closer together through information and technology proliferation. The world is growing smaller, and conduct unbecoming of a civilized society is finding fewer and fewer places to hide. This article examines, in part, the historical evolution of the roles of paid actors in the business of war and violence. A complete examination is not presented, as it would require detailing a complete history of humankind. The author instead focuses on the primary themes and points throughout history that explain the origin, necessity, and permanence of paid-for violence, framed by supporting historical and modern-day references to illustrate the concept of combatants for hire and their impact on human society.
Summary extracted by Aspals

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July 2020 Joint criminal enterprise in the Kosovo specialist chambers Jonathan Rees QC and Felicity Gerry QC International Bar Association,
23 July 2020
One of the issues on the KSC's horizon will be whether it adopts, as a basis for individual criminal responsibility, the extended form of joint criminal enterprise known as 'JCE III'. The ICTY Appeal Chamber declined to depart from the Tadic test in the Radovan Karadzic Appeal. Will the KSC follow the ICTY in interpreting article 16.1 of its statute to embrace the same wide constructed liability? The authors suggest there are good reasons why it should not.
Summary extracted by Aspals

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July 2020 Holding Transnational Corporations Accountable for International Crimes in Syria: Update on the Developments in the Lafarge Case (Parts I&II) Claire Tixeire, Cannelle Lavite and Marie-Laura Guislain Opinio Juris,
27 July 2020
[Part II]
In November 2019, the Paris Court of Appeals dropped the most incriminating of the four charges leveled in indictments by investigative judges against the multinational corporation Lafarge, namely the charge of complicity in crimes against humanity committed in Syria between 2012 and 2014. While this decision is currently the subject of an appeal before France's Supreme Court, the Appeals Court upheld the three other charges against the corporation for deliberately endangering the lives of its Syrian workers, financing a terrorist enterprise, and violating an embargo.
Summary extracted by Aspals

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20 July Non-lethal Assistance and the Syrian Conflict: Lessons from the Netherlands Tom Ruys and Luca Ferro Just Security,
20 July 2020
Whether one thinks of Syria, Libya, Yemen, or Ukraine, third-State involvement is undeniably a common feature of many – if not most – ongoing non-international armed conflicts. While the direct provision of arms to non-State armed groups is widely deemed contrary to international law, recent years suggest that States feel less reticence to provide so-called non-lethal assistance (NLA), understood as material aid not designed to inflict serious bodily harm or death. In particular, in the context of the Syrian civil war, such aid has been provided to various rebel groups, including by the United States as well as by several European countries.
The authors analyse the joint report of the Advisory Committee on Public International Law (CAVV) and the Advisory Council on International Affairs (AIV) on the support of foreign non-State armed groups through non-lethal assistance. The report was commissioned by the Dutch Parliament.
Summary extracted by Aspals

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June 2020 On Iranian Gunboats: Beware Conflating American and Mainstream Views of the Law Craig Martin Just Security,
2 June 2020
This is a response to the article written by Michael Schmitt and Durward Johnson. While agreeing with its conclusions – namely, that the harassing actions by Iranian gunboats in question did not rise to the level of an imminent or actual armed attack on US vessels, and thus could not justify a use of force in response, and that the president's statements could in turn constitute an unlawful threat to use force in violation of Article 2(4) of the U.N. Charter, the author considers that the essay also raises some interesting and debatable questions that invite further discussion, and it makes assertions about the state of particular principles of international law that require some push-back.
Summary by Aspals

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May 2020 Iranian Gunboat Harassment and the Rules of Engagement Michael Schmitt and Durward Johnson Just Security,
7 May 2020
On April 15, eleven Iranian Islamic Revolutionary Guard Corps (IRGC) Navy gunboats repeatedly traversed the bows and sterns of six U.S. Navy vessels that were conducting joint integration operations with U.S. Army Apache attack helicopters in international waters of the Persian Gulf. The U.S. Navy claimed the gunboats' repeated crossings at extremely close range, one as close as 10 yards, were dangerous and harassing approaches. In response, President Trump instructed the Navy to "shoot down and destroy" IRGC Navy gunboats that "harass" U.S. ships. This was his most direct threat of military action against Iran since authorizing the targeted killing of Major General Qassem Soleimani, the former military commander of the IRGC's Quds Force. In a briefing at the White House, the president claimed, we're covered 100 percent with respect to the U.S. military's current rules of engagement. In this article, the authors assess whether U.S. warships have a right under international law to use force in self-defence against IRGC gunboats engaged in harassment operations. In particular, we examine the U.S. military's Standing Rules of Engagement, which provide the operational architecture for defensive action by U.S forces, including warships at sea.
Summary extracted by Aspals

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April Hybrid threats and the law: Concepts, trends and implications Dr Aurel Sari Hybrid CoE Trend Report 3,
April 2020
The European Centre of Excellence for Countering Hybrid Threats operates expert pools to support its participating states and the activities of the Centre's Communities of Interest. The expert pools work as a venue for exchanging information, building connections and gaining a comprehensive understanding of the trends under a specific theme. These trends are then linked, through Hybrid CoE, to potential hybrid threats. The expert pools are an ongoing process and provide content for the Centre's work. Engaging with the expert pools and the activity relating to them is in line with Hybrid CoE's founding memorandum of understanding, which states that Hybrid CoE is to act as a hub of expertise, to offer collective competence and to encourage strategic-level dialogue. This activity should be multidisciplinary and academic-based. Thus, the purpose of engaging with the expert pools is not to pursue a single truth, but rather to provide multiple perspectives on current challenges, to provide perspectives on the academic discourse on the topic, and to serve as a background for policymakers. The added value of this work is that it examines the subject from a hybrid threat perspective. Each participating state, the EU and NATO can then consider which facets of knowledge will be most useful for it from its own perspective.
Summary extracted by Aspals

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April 2020 The African Union-ICC Controversy Before the ICJ: A Way Forward To Strengthen International Criminal Justice? Sascha-Dominik Dov Bachmann & Naa A. Sowatey-Adjei 29 WASH. INT'L L.J. 247 (2020),
14 April 2020
The International Criminal Court was set up as a court of last resort to prosecute the most serious crimes under international law when its member states are either unable or unwilling to act. The African Union initially welcomed the court due to the continent's history of violence and war. However, this soured when the ICC began indicting African heads of state and government officials. Since then, there has been a constant 'battle' over whether such defendants could invoke immunity under customary international law. General criticism of the ICC by the African Union and other observers for its lack of focus has turned into region-specific criticism of the court as a 'Western tool,' singling out and targeting African leaders. Consequently, African states have started to refuse to cooperate with the Court. At an AU Summit in January 2018, a resolution was adopted to seek an Advisory Opinion from the International Court of Justice on the issue of immunity in respect to the ICC. This article will elaborate on the often-strained AU-ICC relationship prior to the 2018 AU Summit before examing three scenarios highlighting how an ICJ decision would affect the present AU-ICC relationship. The article concludes with recommendations and the observation that a compromise must be sought to end the current standoff and impasse.
Summary extracted by Aspals

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March 2020 Legal Considerations Related to the U.S. Air Strike Against Qassem Soleimani Hon. Paul C. Ney, General Counsel U.S. Department of Defense,
4 March 2020
On January 2, 2020, at the direction of the President of the United States, the US military conducted an air strike in Iraq targeting Qassem Soleimani, a major general in the Islamic Revolutionary Guard Corps of Iran, and the commander of an expeditionary Revolutionary Guards unit called the Qods Force. Among others also killed in the strike was Abu Mahdi al-Muhandis, the leader of Kata'ib Hizballah, also known as KH, a Qods Force-backed Shia militia in Iraq. The author explains the international and domestic law underpinnings of the January 2nd air strike. Much of what I will explain is reflected in publicly available documents that the U.S. Government has already provided to the United Nations Security Council and to Congress. The key legal conclusions are already a matter of record. This relied on the United States' inherent right to self defence, the President's Article II constitutional power as Commander-in Chief and statutory authority under the 2002 Authorization for Use of Military Force (AUMF) to defend the national security of the United States against the continuing threat posed by Iraq.
Summary extracted by Aspals

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February 2020 The Other Carolines Alonso Gurmendi Opinio Juris,
17 February 2020
The so-called Caroline Test has been used (and misused) for 179 years. It was referenced both to condemn the German invasion of Norway during World War II and to justify the War on Terror's expansive views on pre-emptive self-defence and the "unwilling or unable" standard. Very few times is one single set of facts as influential and relevant in the evolution of the law as this one. And yet there is a problem: our lawyerly obsession with it is quite probably based on flawed methodology.
Summary extracted by Aspals

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February 2020 A latent core of dark traits explains individual differences in peacekeepers' unethical attitudes and conduct Magnus Linden,Fredrik Bjorklund,Martin Backstrom,Deanna Messervey & David Whetham Military Psychology,
Volume 31, 2019 - Issue 6
31 Oct 2019
The influence of military members' malevolent personality traits on their ethical attitudes and behaviors has been the subject of research for decades. We investigated the relationship between malevolent individual difference factors (Machiavellianism, narcissism, psychopathy, the dominance facet of social dominance orientation, and right-wing authoritarianism) and aspects of military ethics before and during a peacekeeping mission to Mali. Based on pre-service responses from 175 Swedish soldiers, a factor analysis revealed a latent variable to which all individual difference factors contributed. This latent "core of darkness" was related to being more positive toward unethical behaviors both in a warzone and in the Swedish military organization. Extending these findings using a sub-sample of the soldiers (n = 63), we also found that the latent darkness variable prospectively predicted a higher frequency of self-reported insulting and cursing of noncombatants while in Mali. Our results suggest that malevolent individual difference factors have a common core and that moral transgressions during peacekeeping can be predicted and perhaps minimized by identifying soldiers who score high on this common core. However, more research is needed to understand the unique relations of some malevolent factors and different types of morally questionable warzone behavior.
Summary by Authors

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January 2020 The Soleimani Strike and Self-Defence Against an Imminent Armed Attack Dr Marko Milanovic EJILTalk,
7 January 2020
The US drone strike on Qassem Soleimani, one of the most important members of the Iranian leadership, raises many complex questions of international law. Professor Milanovic examines the lawfulness of the strike from the standpoint of the law on the use of force. He first sets out the parameters of the US justification for killing Soleimani, which is some variant of self-defence against an imminent armed attack. He then looks at the notion of an imminent attack, at the different ways such an attack can be repelled, and at whether, on the facts as we know them, the US strike should be regarded as lawful.
The author argues that even if one accepts a broad theory of self-defence against an attack that is yet to occur, such as that espoused by the US government itself, the strike is likely to be unlawful. It is improbable that the US would be able to meet the factual requirements that it needs to justify the strike – in particular, there are serious doubts that there even was an imminent attack, and there are serious doubts that the method the US chose to resist that supposed attack was necessary under the circumstances. If such was the case, the US breached the prohibition on the use of force in Article 2(4) of the UN Charter vis-à-vis both Iran and Iraq. Finally, the post looks at the illegality of the threats of further use of force made by President Trump against Iran, which are unlawful both as a matter of the jus ad bellum and the jus in bello.
Summary extracted by Aspals

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7 January Three Lingering Questions about the Legality of Withdrawal from Syria: Part I – Complicity by Omission Beatrice Walton and Paul Strauch Opinio Juris,
7 January 2020
This post — the first in a two-part series — considers the law relevant to the U.S. withdrawal from Syria in early October. Experts condemned Turkey's invasion as a violation of Article 2(4) of the UN Charter, an unlawful act of aggression, and as potentially entailing crimes against humanity. Turkish forces and their proxies have reportedly committed a host of violations of international humanitarian law (IHL) in addition, including through indiscriminate attacks, summary killings, torture, and rape against Kurdish populations. The authors take up three legal issues relevant to understanding whether the US was able to abruptly remove its troops and support for the SDF just ahead of Turkey's invasion without incurring international responsibility.
Summary extracted by Aspals

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4 January 2020 The Soleimani Strike Defied the U.S. Constitution Professor Oona Hathaway The Atlantic,
4 January 2020
The drone strike that killed Major General Qassem Soleimani, leader of the Quds Force of the Islamic Revolutionary Guard Corps, raises many legal issues, but one of the most significant—at least to the American constitutional order—is that President Donald Trump ordered the strike without so much as informing Democratic leadership in Congress, disregarding Congress's essential role in initiating war. If Congress fails to respond effectively, the constitutional order will be broken beyond repair, and the president will be left with the unmitigated power to take the country to war on his own—anywhere, anytime, for any reason.
Summary extracted by Aspals

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