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Old 02-18-2003, 08:39 PM   #1
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Attack or Self-Defense?

I´ve done some research on attack and self-defense, and it seems that US policy-makers are trying to define the term self-defense newly for the upcoming attack on Iraq.

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senrs.com/first_punch.htm

"Can the United States attack Iraq out of self-defense even before Iraq fires a single shot? The answer could rewrite the rule book for the rest of the world.

Anticipatory self-defense sounds like a political oxymoron and reads like ancient riddle: Can a person hit back before the first punch is thrown? In military terms, if a first strike is meant to defend, is it really a first strike?

These are just the questions the White House has to answer — and not just for itself, but for the rest of the world.

While the United States looks for evidence that could link the al Qaeda terrorist network to Saddam Hussein, President Bush is demanding a "regime change" in Iraq and mulling the means to accomplish it.

The option championed by U.S. allies — including, as of last week, Britain — would be to reinstate U.N. weapons inspectors and oust Saddam through stronger sanctions.

But several scenarios for an invasion by U.S. forces have been reported in the last two months and on Monday the White House's lawyers made clear that Bush would not need Congress' approval to send in troops. Also on Monday, Vice President Dick Cheney told a gathering hosted in Nashville, Tenn., by the Veterans of Foreign Wars that Iraq's action and hostility created "an imperative for pre-emptive attack."

Legal scholars say the United States could attack Iraq out of self-defense, even before Iraq fires a single shot at U.S. troops, citing a pre-Civil War military definition that's found a second life in the war on terrorism.

"What we must not do is in the face of a mortal threat is to give in to wishful thinking or willful blindness," Cheney said. "We will not simply look away, hope for the best and leave the matter for some future administration to resolve."

Instant and Overwhelming

Famed American politician Daniel Webster defined "anticipatory self-defense" more than 150 years ago when he wrote that self-defense before an attack was justified if the danger was "instant, overwhelming, leaving no choice of means and no moment of deliberation."

Webster's words followed a 1837 naval skirmish called the Caroline incident, in which a U.S. ship called the Caroline was attacked by the British, just above Niagara Falls. The British said the ship's passengers supported a rebellion in Canada. Webster responded with a letter that laid out his definition. Webster's words were later reaffirmed after World War II during the Nuremberg Trials.

Though untested, scholars say there is room for Caroline decisions in the U.N. Charter, the treaty that still lays the largest groundwork for stability between states. The 1951 charter holds that one military can only fight another in self-defense against "an armed attack."

However, scholars point out that Webster's definition leaves several loopholes. The United States has been contemplating an attack on Iraq since Sept. 11, and in some ways for more than a decade, so there's been plenty of "deliberation."

Instead, the White House has used the term "pre-emptive" rather than "anticipatory." The difference is slight, but some say significant: Scholars argue it could blur the point where a threat of attack is considered "overwhelming."

The Point of No Return

At a West Point graduation ceremony in June, Bush talked directly about how the United States would approach enemies in the war on terror, which now could include Iraq: "The war on terror will not be won on the defensive. We must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge."

Bush's speech signaled a shift in the doctrine of U.S. military intervention. Troops were sent into Afghanistan after Sept. 11 to prevent another attack on the United States. In 1991, the U.S. military fought Iraq on behalf of Kuwait with the support of Congress and the U.N. Security Council. An invasion of Iraq — conceivably with only the White House's approval — could violate the international laws that the United States has championed since World War II.

Critics warn that the evidence the United States needs to attack — the point of no return — has not been clearly defined, and has no precedent. Would the United States wait to invade until there was proof Iraq had built a chemical, biological or nuclear weapon? Or would Bush send in troops as soon as Iraq had all the components?

"The standards for invasion now are pretty cut-and-dry: If you're attacked, you can respond," said Sean Murphy, a professor of international law at George Washington University, "But if you make anticipatory self-defense the standard, you open an enormous Pandora's Box."

Rewriting the Rules

Because Webster's ruling has widely defined anticipatory self-defense, if the United States reinterprets its own standard, it could set a new precedent for the rest of the world.

"International law is largely based on custom, and those customs can change with time and circumstance," said Frederick Kirgis, a professor at Washington and Lee University. "It's all whether you can get other nations to acquiesce to your assertions."

The major precedent for pre-emptive military action is Israel's Six-Day War in 1967, fought against Egypt, Syria, Jordan and Iraq. Israel invaded its neighbors, citing the need to pre-empt an enemy invasion, but never provided full evidence or rationale for its actions.

The rest of the world — led by the United Nations — largely condemned Israel for the attacks. Israel faced criticism again in 1981 — including from the United States — when it destroyed an Iraqi nuclear facility, claiming it needed to defend itself from the plant's capabilities.

If the United States was to invade Iraq without a first strike, legal experts said the global community would expect a formal reason.

The White House is expected to lay out a larger definition of pre-emptive self-defense — as well as several other defense initiatives — in its annual National Security Strategy, which will be published and presented to Congress in September, according to National Security Council spokesman Michael Anton."

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"What Prevents U.S. Attack on Iraq
Dave Eberhart, NewsMax.com
Wednesday, Jan. 9, 2002
When Deputy Defense Secretary Paul Wolfowitz indicated to the New York Times this week that the U.S.-led War on Terrorism would bypass Iraq and concentrate on outlaw sanctuaries in Somalia, Yemen, Indonesia and the Philippines, he did not surprise students of international law.
The dilemma of what to do about Iraq has always sounded in the vagaries of what is recognized by the United Nations’ Charter and international law as acceptable means of self-defense. At the heart of the conundrum are the nettlesome buzzwords "pre-emptory attack,” or "anticipatory self-defense.”

And as soon as these watchwords appear in the mix, the "Caroline standard” is never far behind.

In 1837 British subjects destroyed an American vessel, the Caroline, in a U.S. port, justifying the act because the ship had been used in past American raids into Canadian territory.

The British claimed self-defense, but ultimately the dispute was decided in favor of the Americans, thanks to the statesmanship of no less a figure than Daniel Webster.

Secretary of State Webster offered the British a definition of "self-defense” that they could not reasonably refuse:

"There must be a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation. [The means of self-defense may involve] nothing unreasonable or excessive; since the act, justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it.”

This has been a recognized rule in international law ever since – a fact not lost on Secretary of State Colin Powell and the Bush administration.

Intrinsic in the rule: The more time that passes between the attack and the military response, the less it appears to be self-defense.

The most often-cited example of "anticipatory self-defense” and the application of the Caroline standard was Israel’s strike against an Iraqi nuclear reactor in 1981. Israel’s justification: Eventually, the materials and science developed at the reactor could have led to a nuclear-armed Iraq.

The U.N. Security Council condemned the attack because the threat to Israel, albeit foreseeable, was not "imminent.”

Despite the U.N. position, the matter was still gray enough to get mixed reviews from scholars of international law. A minority of experts maintained at the time and in hindsight that Israel indeed met the Caroline standard, because destroying the reactor may have been Israel’s last clear chance to avoid a nuclear attack.

Also complicating the Iraq equation is the recognition by Powell and the administration that the U.N. resolution announced in the wake of Sept. 11 did not give a green light to any means the U.S. chooses to take in ferreting out and destroying terrorists."

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august1.com/lectures/pil/lect-101/notes101.htm

3. Self-Defense

a. The UN Charter (Art. 51) allows states to use force for their own self-defense.

b. Definition of self-defense.

1) Not defined in the Charter.
2) The now generally accepted definition was first set out in the Caroline Case. It requires that a state claiming self-defense must show three things:

a) There must be "a necessity of self-defense": the action taken must be in response to some provocation and thusly justified.

1] UN Charter Art. 51 suggests that the right to self- defense may only be exercised after "an armed attack occurs."
2] The right to use self-defense in anticipation of another state’s attack has been claimed by some states.

Case 10-5. THE ENTEBBE INCIDENT

b) The provocation must have been "instant, overwhelming, leaving no choice of means, and no moment for deliberation."

1] A state claiming a right to self-defense must respond "promptly" to an armed attack.

Case 10-6. THE FALKLAND ISLANDS WAR

c) The action taken must be "proportionate to the seriousness of the circumstances: it must be "limited by that necessity, and kept clearly within it."

1] The principal of proportionality was succinctly defined in a 1927 report presented to the League of Nations: "Legitimate defense implies the adoption of measures proportionate to the seriousness of the attack and justified by the seriousness of the danger."


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www.atimes.com/atimes/Middle_East/DJ09Ak02.html

The case against preemption
By Peter Mark

The Bush administration threatens a preemptive attack on Iraq. It is important to ask what affect such an attack might have on the relationship of the United States to the rest of the international community. Almost without exception, America's closest allies have voiced opposition to a military attack against Iraq.

What might their response be if the US actually carries out its threats? In the light of widespread international opposition to the use of military force against Saddam Hussein's government, it is important for American citizens to ask: can such a preemptive use of military force against another nation be justified by international law?

Here, succinctly, are some elements of international law that relate to the situation between the United States and Iraq.

An important principle of international law is the avoidance of armed force. Article 2-4 of the United Nations Charter prohibits all recourse to military force, including war. The US is a signatory member of the United Nations and must therefore respect the charter.

Article 2 of the UN Charter: The Organization and its members, in pursuit of the purposes stated in Article 1, shall act in accordance with the following principles ... all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.

Would the use of armed force against Iraq be compatible with the aims of the United Nation? Article 51 of the charter authorizes the use of armed force for legitimate self-defense, but this right is applicable only if a member of the United Nations is the object of an armed aggression.

Article 51 of the United Nation Charter:
Nothing in the present charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Armed intervention is justified under the following conditions:
1. The existence of armed aggression (the definition adopted by the UN General Assembly, Resolution 3314 of 1974): Aggression is defined as the use of armed force by one state, against the sovereignty, territorial integrity or political independence of another state.
2. The absence of necessary measures by the UN Security Council to maintain peace. Once the Security Council has taken these measures, the right to armed self-defense ceases. A state that takes measures of legitimate self-defense is obligated to inform the Security Council.
3. Legitimate defense only justifies "those measures proportional to the armed aggression that has occurred, and that are necessary for ending that aggression." (International Court of Justice, June 27, 1986 in re Nicaragua).

Self-defense only warrants "measures which are proportional to the armed attack and necessary to respond to it". It implies that the victim of aggression must not occupy the aggressor state's territory, unless strictly necessary.

The use of armed force may on occasion be justified as part of humanitarian assistance, but only in order to prevent human suffering and "to protect life and health and to ensure the respect of persons" (International Court of Justice, June 27, 1986 in re Nicaragua). Such intervention must not be discriminatory.

In each of these cases, it is clear that the United States does not have the right to intervene without the approval of the Security Council. Nevertheless, on several occasions the US has used the argument of Article 51 of the UN charter to justify attacks that do not fall within the domain of legitimate defense:
- In 1986 against Libya (to justify an attack that caused the death of 37 people, mostly civilians) in reprisal for the bombing of a Berlin disco that caused the death of an American soldier.
- In 1993 against Iraq (purportedly to prevent an assassination attempt against the US president orchestrated by Iraq).

The rationale of anticipatory self-defense has been invoked by Israel to justify attacks against Palestinian camps in Lebanon in 1975. Subsequently, UN Security Council resolutions have condemned this attack while contesting the idea of self-defense where there has been no armed intervention by the "aggressor".

The thesis of anticipatory self-defense is thus not an acceptable principle of international law today, because it is prone to arbitrary interpretation. A preemptive attack on another sovereign nation is counter to established and universally accepted standards of international law. This may help to explain the vehemence of opposition to a preemptive attack, among even our staunchest European allies.
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Old 02-18-2003, 08:42 PM   #2
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Hi hiphop

I don't think anticipatory self-defense is an oxymoron, I think the idea parallels the laws here that allow a cop to shoot someone who is pointing a gun at them, even if they haven't shot yet
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Old 02-18-2003, 08:45 PM   #3
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Hip Hop.....

I am not the most knowledgeable person in the area of the UN Charter. I appreciate you posting this. It is one of the better things I have seen posted in a long long time. Thanks.
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Old 02-18-2003, 08:48 PM   #4
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If you´ve read all four articles in three minute plus posted your answer, you´re a very fast reader and thinker, bonosloveslave

Your comparison is ineffective, because the policeman has been chosen to secure there is less criminality. If you think the US is the worlds policeman, you may be right - but who chose the US to be the worlds policeman?

Plus, who is pointing a gun at the US? Don´t come to tell me its Saddam
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Old 02-18-2003, 08:49 PM   #5
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Quote:
Originally posted by Dreadsox
Hip Hop.....

I am not the most knowledgeable person in the area of the UN Charter. I appreciate you posting this. It is one of the better things I have seen posted in a long long time. Thanks.
Thank you for the compliment, Dreadsox.
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Old 02-18-2003, 08:54 PM   #6
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Quote:
Originally posted by whenhiphopdrovethebigcars
If you´ve read all four articles in three minute plus posted your answer, you´re a very fast reader and thinker, bonosloveslave

Your comparison is ineffective, because the policeman has been chosen to secure there is less criminality. If you think the US is the worlds policeman, you may be right - but who chose the US to be the worlds policeman?

Plus, who is pointing a gun at the US? Don´t come to tell me its Saddam
Ok, you got me on the first one - I just posted my first impression after skimming a bit before I lost the thought

Yeah, I guess I'm not sure who voted us the world's policeman, seems like maybe we've just given ourselves the job......
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Old 02-18-2003, 10:45 PM   #7
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HIPHOP,

Not one mention above of UN Security Council Resolution 678 or any of the other 16 Security Council resolutions passed under CHAPTER VII rules of the United Nations. No mention of the 1991 Gulf War Ceacefire Agreement and the conditions and rules laid out in it.

United Nations Security Council Resolutions 678:

"Authorizes member states to use all necessary means to uphold and implement Security council resolution 660 and all subsequent relevant resolutions and to restore international peace and security in the area"

Iraq from a, legal standpoint, is at war with the international community right now. Member States are obligated to enforce resolutions passed under Chapter VII rules with force if necessary. Any violation of the conditions of the 1991 Ceacefire Agreement is legally an act of war by Iraq. From a legal standpoint, even Saddam agrees with that because he signed the agreement. If other countries have a problem with this, they should not of approved it in 1991.

I don't think there has ever been a war that has had more laws and resolutions on the books justifying it than a potential war with Iraq.
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Old 02-18-2003, 11:31 PM   #8
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Sting:

Let's stop for a moment and look at the history of how cease fire agreements are handled by the UN.

Past precident is that once a cease fire has been established CHARTER Rules take priority specifically Article I and II.

*In 1956 Secretary-General Dag Hammarskjöld ruled that "only the Security Council could decide that a case of non-compliance was a justification for self-defense [under] Article 51."

* In 1958, UN mediator, Count Bernadotte, working on a crisis between Israel and Arab leaders stated: "(1) No party may unilaterally put an end to the truce. (2) No party may take the law into its own hands and decree that it is relieved of its obligations under the resolution of the Security Council because in its opinion the other party has violated the truce."


Two examples of situations where clearly, it is up to the Security Council to decide if a CEASE FIRE agreement has been violated.

Let's look at 678 (2) that you quoted:

2. Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the foregoing resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area;


OK so it refers to paragraph 1

1. Demands that Iraq comply fully with resolution 660 (1990) and all subsequent relevant resolutions, and decides, while maintaining all its decisions, to allow Iraq one final opportunity, as a pause of goodwil, to do so;


Which in turn refers to reolution 660:

1. Condemns the Iraqi invasion of Kuwait;

2. Demands that Iraq withdraw immediately and unconditionally all s its forces to the positions in which they were located on 1 August 1990;

3. Calls upon Iraq and Kuwait to begin immediately intensive negotiations for the resolution of their differences and supports all efforts in this regard, and especially those of the League of Arab States;

4. Decides to meet again as necessary to consider further steps with to ensure compliance with the present resolution.

Iraq met all of these requirements. Article 678 was written to remove Iraq out of Kuwait. It's authority expired with the Cease Fire Agreement.
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Old 02-18-2003, 11:46 PM   #9
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Dreadsox,

That is incorrect, you forgot this part of 678:

"and all SUBSEQUENT relevant resolutions and to restore international peace and security in the area."

That refers to all the resolutions which have now been passed against Iraq(Under Chapter VII rules) since November of 1990 that Iraq is currently in violation of.

As to the Ceacefire Resolution, the Security Council already decided in 1991 the conditions and what would constitute a violation of those conditions. Iraq is currently in violation of these conditions.
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Old 02-18-2003, 11:56 PM   #10
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Nope...Did not forget it. Once a cease fire is established, the Security Council decides if it is violated. This has been the past practice of the United Nations since its formation. You cannot ignore this fact.

But, the cease fire itself gives the Security Council the power to decide what steps are necessary to take once the Cease Fire was agreed to:

33. Declares that, upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the provisions above, a formal cease-fire is effective between Iraq and Kuwait and the Member States cooperating with Kuwait in accordance with resolution 678 (1990);

34. Decides to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area.

Once the formal Cease-Fire was established, Kuwaitt and the Allies were no longer operating under resolution 678. This is clear in section 34, where the COuncil has the authority to decide.
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Old 02-19-2003, 12:09 AM   #11
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ANother example of how the Security Council alone has the power to determine if a "Cease-Fire" has been violated is Korea.

Article 83 has very similar languae to Article 678 in regaurds to North Korea. It authorized the use of force to defend and "to restore international peace and security in the area."

It died when the "Cease-Fire Agreement" was signed. It's authority had expired.

South Korea twice claimed and argued at the UN that North Korea and China had violated the cease fire thereby reinstating ARTICLE 83. Not a single member of the defending force agreed in 1955, 1956, and in 1957 the 16 Nations reaffirmed the fact that only the Security Council could rule that a violation of the Cease-Fire had taken place.

This situation is very similar to the situation we are in today.
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Old 02-19-2003, 12:26 AM   #12
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Dreadsox,

"and all SUBSEQUENT relevant resolutions and to restore international peace and security in the area."

This part of 678 refered to any future resolutions passed against Iraq under Chapter VII rules. SUBSEQUENT means after. This is the literal interpretation of 678. The US government has justified all military action against Iraq for the past 12 years under the grounds of 678.

The ceacefire does not cancel out 678s mandate that Iraq must comply with ALL SUBSEQUENT relevant resolutions including those passed since 1991. Member states are justified to use all necessary means to bring compliance with 678 as well as restoring peace and Security in the area.

Every Presidential Adminstration since 1991 as reaffirmed that Iraq has not fully complied with Resolution 678.
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Old 02-19-2003, 12:38 AM   #13
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Quote:
Originally posted by STING2


The ceacefire does not cancel out 678s mandate that Iraq must comply with ALL SUBSEQUENT relevant resolutions including those passed since 1991. Member states are justified to use all necessary means to bring compliance with 678 as well as restoring peace and Security in the area.

Absolutely 100% it does. After a cease-fire agreement, the members of the UN operate under the Charter. As I mentioned in my other posts, you cannot escape the past history. Past history in which the United States has supported the fact that a UN Cease Fire can only be deemed violated by the United Nations. That is the RULE of law that has been followed.

The CEASE-FIRE itself gives the power to the Security Council as I posted above. It deems the mandate of 678 fulfilled in section 33, and in section 34 it gives the power to the Security Council.


It is rediculous to argue that 678 gives authority to resume the conflict. If article 678 did not give the authority to remove Saddam from power in 1990, it most certainly does not now. The whole premise for stopping the Gulf War in 1990 was that the coalition governements did not believe that the resolutions gave them this power. What were the resolutions at the time?

660
661
665
670
678

None of these resolutions gave any authority for the occupation of Iraq. That is why, 678 was intended specifically for the removal of Iraq from Kuwaitt.

Now if you wish to argue subsequent resolutions fine. I can accept that. Can you show me anywhere in a subsequent resolution where the authority is given for the invasion of Iraq? I am sure, that you can agree that if 678 did not give the power to remove Saddam in 1990, it most certainly does not give the authority today.

Peace



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Old 02-19-2003, 12:41 AM   #14
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This is the key difference with article 83.

"all SUBSEQUENT relevant resolutions" Article 83 does not have references to the use of force in regards to violations of future resolutions passed under Chapter VII rules. Article 687 does.
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Old 02-19-2003, 12:44 AM   #15
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I agree with that. However, it does not nullify the fact that the United States along with 16 other nations twice in 1955 and 1956 reaffirmed the fact that only the Security Council could determine if a cease-fire had been violated.

Subsequent resolutions are irrelevant in this case.
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