Lawyers for Palestinian Human Rights and the Haldane Society of Socialist Lawyers present: GAZA FLOTILLA INTERCEPTION

: LEGAL ISSUES AND REMEDIES Tuesday 8 June 2010 Garden Court Chambers, Lincoln’s Inn Fields, London WC2A 3LJ

[carrindell | 11 June 2010; Gaza Aid Flotilla Interception ~ Legal Issues & Remedies 1.wmv; http://www.youtube.com/watch?v=BxsZ2apiaDQ (Accessed 22 December 2010)] Transcription: Richard Lightbown (r_lightbown@yahoo.com)

Chaired by Katherine Craig, Christian Khan Solicitors Katherine Craig: We have two speakers: Dr Douglas Guilfoyle who is a lecturer at UCL and who is an expert in the law of the sea and international law of jurisdiction, and international and transnational criminal law. He is going to be introducing first the law of the sea for about ten minutes to give us a background. Then our second speaker is Prof Iain Scobbie who you may have seen at our LPHR meetings before. He is a lecturer at SOAS and a professor in international humanitarian law, and a research fellow in law, human rights and peace building in the Middle East. Iain is going to be doing the context of the conflict and then Dr Guilfoyle will wrap it up for us at the end. Dr Douglas Guilfoyle: I think many of us in the field of public international law thought of blockade as in some senses of largely historic interest until recent events. There are only a handful of examples of blockades being declared as part of an armed conflict since the Second World War. That sense of an older law coming back to us I think is very much relevant to the way we are going to be structuring our discussion tonight. It used to be that text books on public international law were divided into the laws of peace and the laws of war. To some extent that’s how we are dividing things us this evening. I will be starting with the laws of peace relating to the law of the sea. Then we will be talking about the law of armed conflict and then perhaps towards the end how those interact. We’ve heard particularly in media reports a lot of statements about the general law of the sea. We’ve heard about issues regarding the jurisdiction of flag states (the Mavi Marmara being a Turkish vessel) the freedom of the high seas, and indeed we’ve heard denunciations of certain actions as piracy. All these are things are worth clarifying, perhaps relatively briefly. Certainly, as it were, under the law of peace a vessel on the high seas is subject to the exclusive jurisdiction of the state to which it is flagged or the state which it

enjoys nationality in. So this idea of the exclusive jurisdiction of the flag-state is firmly entrenched in universal customary international law, but also in treaty law. It is found in Article 6 of the High Seas Convention, to which Israel is a party, and also in the later United Nations Convention on the Law of the Sea, to which there are 160 state parties or more. That principle knows only a finite number of exceptions. Those found in Article 22 of the High Seas Convention are that a foreign government may board a vessel on the high seas if it suspected of being engaged in piracy, being engaged in the slave trade or despite displaying no flag or national markings, being of the same nationality as the intercepting warship. Or perhaps being a stateless vessel, a vessel without nationality. Now none of those would, on their face, appear to apply here, and I think that is behind some of the comments we have certainly heard. However that is the law of peace. In times of armed conflict a separate law applies, the law of naval warfare. It displaces those ordinary principles, or at least it has the potential to, perhaps even if you were not a party to the armed conflict in question. However if you lack any legal right under the law of armed conflict to intercept a vessel, then in my view the laws of peace come back into play and we start talking about these concepts again. So that is a very general sketch of the freedom of the high seas, but the point I want to emphasise is if you have a valid claim under the laws of war, then what I have talked about does not necessarily apply. On that point I think it is best to pass over to Iain. Professor Iain Scobbie: Douglas is correct in saying that the law of armed conflict at sea has really been ignored to a great extent since World War II. It’s really also a very archaic area which very few people look at nowadays. One of the bits they definitely don’t look at is the question of neutrality, which is principally associated with war at sea, as the aim of neutrality is to restrict the spread of the conflict. If we’re looking at the situation which recently occurred, the legal framework from locate and interception can only be the law of armed conflict maritime, not a law enforcement one. I think this is demonstrated by Israel’s reliance on a document called the San Remo Manual. The San Remo Manual is primarily meant to indicate the rules that are relevant during an international armed conflict at sea. It is a document that was produced by a private body, the International Institute for Humanitarian Law, which is based in San Remo. It therefore is not a document to which states have signed up. Having said that though, it is seen as very authoritative. If you look at the UK Manual on Armed Conflict, its section on the law of war at sea draws extensively on the San Remo Manual. However it also indicates that the San Remo Manual is not comprehensive. There are some gaps in it. So in order to fill these gaps in the San Remo Manual we’ve really got to other earlier instruments. Instruments such as the 1909 London Protocol on the Law of War at Sea, and the 1939 Harvard Draft Convention on the Rights and Duties of Neutrals at Sea. For a number of years, Israel has claimed that it is in a state of armed conflict with Hamas, and it has been very ambiguous about the nature of this armed conflict. In

international law there are principally two types of armed conflict: an international armed conflict and a non-international armed conflict. It’s quite important to bear this distinction in mind because different rules apply in both. Some rules are common, but each of these two categories does have different rules. If you accept that Gaza is occupied by Israel, which Israel denies since its disengagement in 2005, then this is an international armed conflict. However despite wanting to keep this status of the conflict ambiguous, when Israel declared a blockade of Gaza that automatically made it an international armed conflict, for various reasons I won’t go into. But simply the fact that you have a blockade in place, presumably because the effects and constraints that you place on other state’s shipping and commerce, it is automatically an international armed conflict. Now we’re looking for a definition of a blockade. A blockade is really a comprehensive trading ban by neutral states with the enemy state. It’s not simply restrictions placed on the carriage of some goods which might be used or which might help the other side’s ability to wage war. A blockade is a comprehensive ban on all commerce, it’s a complete prohibition. There are legal requirements for blockades. One is that the blockade must be declared, as Israel did in January 2009. The other one is that the blockade must be effective, in other words it must not be broken or it must not be broken all that often. The other one is that it must be impartial. This means that all vessels regardless of their nationality must be excluded from the zone or from the coastline under blockade. That includes ships which fly the flag of the blockading state. As Douglas has said, blockades can be enforced on the high seas. In the current situation given Israel’s control of the maritime zones off Gaza one really would expect the area in which Israel can enforce a blockade to be quite close to the shore, quite close to the blockade line that it declared. However as we were looking at the question of capture, one of the major principles is that for the capture of a ship attempting to break a blockade to be lawful, the blockade itself must be lawful. This really raises two questions regarding the Israeli blockade, one of which is the question of occupation. There is authority to argue that a blockade cannot be imposed lawfully by a state on territory it already occupies. So there is this question of occupation. The other consideration in assessing whether this blockade is lawful is to do with the question of the effects it has on the civilian population. Now some of you may recall, I think it was in 2006, an aide to the then Israeli prime minister, Olmert, a guy called Dov Weissglass, said of the restrictions Israel was imposing on Gaza that the idea behind this was “to put the Palestinians on a diet but not make them die of hunger”. In April of this year there was an UNWRA report released on the state of society of Gaza which said that 300,000 out of the 700,000 refugees who formed UNRWA’s caseload, live in abject poverty. That was defined as being that they had no secure access to food and they were unable buy such basics as soap and clean drinking water.

I think when we are faced with that number of people being in a state of abject poverty it really does start to ring alarm bells and I think there is room to consider whether Israel has been relying selectively on the San Remo Manual in justifying its blockade. In particular there is an argument that Israel has been ignoring Article 102 of the San Remo Manual. This prohibits the imposition of a blockade if the sole object of the blockade is to starve the civilian population, or to deny it objects which are essential for its survival, or if the damage to civilians is, or is expected to be excessive in relation to the military advantage expected from the blockade. Starvation in the law of armed conflict does have a fairly precise meaning because it has its ordinary meaning; it is not a technical term. Starvation means causing hunger. Or keeping a civilian population scantily supplied with food, which is the definition used in the authoritative commentary used by the International Committee of the Red Cross. In other words, keeping a population on a diet. However the maritime blockade is only one aspect of the restrictions that are placed on imports to Gaza. There restrictions were placed in order to block the infiltration of arms or ammunition to Hamas. Given that land restrictions already exist it is probably difficult to argue that the sole aim of the blockade is to cause starvation. But then this raises the question of whether its effects are excessive in relation to the aim of the blockade, the aim of arms and ammunition being supplied to Hamas. That aim could be achieved by other means. It could be achieved by a visit and search policy where the Israeli Navy searched vessels en route to Gaza for armaments. This might indicate that the blockade, because it is an excessive measure, is itself disproportionate, and therefore illegal. If it is illegal it is a nullity. It is as if the blockade never existed in the first place. Other provisions of the San Remo Manual are also relevant, especially Articles 102 and 103. These place an unequivocal obligation on the blockading power to allow humanitarian aid through a blockade if the civilian population is inadequately provided with food, or medicine, or other essential supplies. However these ships that go through the blockade are subject to search by the blockading power. These requirements which arise under the law of maritime warfare are actually parallel to obligations which are placed on the occupants of territory by Geneva Convention IV, 1949. As I’m sure most of you know, Article 55 i of Convention IV places an obligation on the occupant to ensure food and medical supplies to the civilian population of occupied territory, and this is an obligation to maintain at a reasonable level, material conditions. This differs from the standard used by the Israeli government and endorsed by Israel’s High Court, which talks about basic humanitarian needs. That notion of basic humanitarian needs is unknown to the law of armed conflict. Also if you look at Articles 59 to 61 of Convention IV, there is an unconditional obligation on an occupant to allow relief by third states or by impartial humanitarian organizations such as the International Committee of the Red Cross. Again like

shipments that go through a blockade, under the San Remo Manual these relief supplies are subject to search or inspection by the occupant to check for weapons. This really takes us to the point: whether we are looking at the maritime law or the law of occupation, Israel is under a duty to allow humanitarian relief into Gaza. If we think for a moment about interception, if the blockade is lawful Israel was entitled to prevent ships running the blockade. However ships which are running the blockade are under no duty to stop and they can resist or attempt to escape. That then makes them liable to attack by the blockading warships. However that attack must not be excessive in relation to the expected military advantage. If on the other hand the blockade is unlawful, which I suspect it is because Gaza is occupied, and or because the blockade is having a disproportionate effect on the civilian population, then any attempt to intercept the ship on the high seas is unlawful. It could I think amount to an unlawful use of force under the UN Charter. In which case the crew and passengers of the intercepted ships have the right to personal self-defence, although to go back to what Douglas was saying, because of exclusive flag-state jurisdiction the modalities of self-defence would be determined by the domestic law of the flag-state. Dr Douglas Guilfoyle: So if we follow the logic of this presentation we have reached the point at which Iain has said he suspects the blockade is illegal for the reasons he has outlined. So if the blockade is illegal then you have no legal claim to intercept a vessel on the high seas. So if we follow that thesis we are now in a position where we have to ask what law applies to an unlawful boarding of a foreign-flagged vessel on the high seas? We have as it were reached the next stage in the legal hypothesis. Now there are two ways we can slice this under the laws of peace. The first Iain has foreshadowed. We could say this was a use of force in the course of international relations contrary to Article 24 of the UN Charter. Now that might suggest that the applicable paradigm is a military one, and the basic rules would be derived from the laws of armed conflict, that any action taken must be reasonable and proportionate, would govern the action. That’s one way to look at it. My instinct, and we all tend to fall back on what we know, and I’m a law of the seas specialist first and a naval warfare specialist a distant second, is that the law enforcement paradigm that the rules that we derive from the law enforcement cases should still prevail, and I think that’s right for several reasons. First I think we need to look to the nature of the activity rather than the uniforms being worn. As Iain has said, if a vessel ran a legal blockade and resisted all attempts to stop it and refused every warning, there might be a right to attack it. However what happened on the contested facts as we know them is that the aim of the Israeli operation was to intercept the vessels, put people on board, take control of the vessel, divert it and detain persons board. That is quintessentially what happens in any law enforcement operation on the high seas, be it counter narcotics, counter people smuggling, piracy: we have a law that deals with that.

Also, even if an armed conflict paradigm was applicable just because you are using your military, we have cases like the Palestinian World Advisory Opinion which tells us that human rights still has a role to play, and certainly the philosophy of the Red Cross is that one should look for the highest standard of protection where applicable. Certainly there are aspects of human rights law that would be applicable to enforcement actions on the high seas against foreign vessels. Finally there is case law. There is not a lot, but there certainly are cases which have gone for international decisions where excessive force has been used resulting in damage to a vessel injury to individuals and the actual sinking of vessels at sea, and all of these have been determined under the laws of peace. So for those reasons I think, even though it’s a military interception, there is no justification under the laws of war. We looked at the ordinary principles that have emerged out of the international case law dealing with police actions, even though as it were, this is an illegal police action. I hope that makes sense. So what then do the cases say? The basic rule was stated by the International Tribunal for the Law of the Sea in a case called the MV Saga No 2, where it said that unwritten general public international law requires that the use of force in such operations must be avoided as far as possible, and where unavoidable it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply. They then talk about the ordinary practice of giving signals to stop and warnings before taking any action involving use of force. They conclude by saying in that case “all efforts should be taken to ensure that life should not be endangered”. They looked to a number of treaties, there is not one treaty which governs all law enforcement actions, but most treaties that have relevant provisions have embodied similar ideas. One that they turned to is an agreement called the UN Fish Stocks Agreement which sets out rules to do with fish inspections at sea which might not seem terribly appropriate in the context that we are talking about. But they do talk about the necessity for law enforcement officials avoiding the use of force except when, and to the degree necessary, to ensure their safety. They talk about that as being a general principle of the law of the sea that is not contained to that specific fisheries treaty. So within that framework, what general principles appear to emerge from the case law? I would suggest, and I will assert rather than go through the treaty instruments and cases, that the normal principles that we would expect to be adhered to are principles such as the idea that force may be used if no other means involving the situation can be applied, that any force used must be proportionate to the objective which is employed, and all force used must be the minimum necessary. Now here we have terms like ‘proportionality’, ‘reasonableness’, ‘the minimum necessary’. Even if we were in a law of armed conflict paradigm I’m not sure the underlying concepts would actually be terribly different. However the one thing that every relevant law enforcement treaty adverts to, is that officers aboard a foreign vessel, do not lose their right of individual self-protection if attacked. Now that does lead to an interesting question when you have foreign agents aboard a flag-state

vessel, as to the applicable law. It will in principle be that of the flag-state, however officials abroad will probably still remain subject to as it were their sending state’s law. The question of the interaction of those two regimes will be governed by issues of state immunity.

http://www.youtube.com/watch?v=Kh-4M4U0P9M (Accessed 24 December 2010)

Dr Douglas Guilfoyle: Was this an act of state piracy? So if you have no authority to act against a vessel and you go out and seize it anyway, you’ve used force from one ship against another, have you committed piracy? The simple answer is no, for the basic reason that piracy is a crime of private individuals, by definition it cannot be committed by state agents. So it is a simple definitional matter. One could describe certain events as being akin to piracy, which I think some commentators have done, and there is a long history of denouncing violent action at sea as being like piracy. As a matter of strict definition it’s absolutely settled that states don’t commit piracy. They commit acts of state responsibility, they may commit illegal acts. We just do not necessarily term then piracy. So that would be my sketch of the applicable law I would suggest in an enforcement operation at sea and I think unless Iain has any further comments I should return us to the chair. [Questions were taken in groups of three. Questioners were difficult to hear.] Katherine Craig: So the first one, why term it law enforcement rather than armed conflict and what is the implication on responsibility for Israel? Dr Douglas Guilfoyle: I think it would be better if I just dropped the word law and referred to it as enforcement, but I don’t think it hands all of the argument to one side or the other, because the restrictions on the level of force you are allowed to use in an enforcement, a policing action is more tightly calibrated in my view. So I think the argument is harder to make and even if it was a law of conflict paradigm there is still an individual right to self-defence, there is still defence before any kind of military court that one’s actions were necessary to defend either one’s own life or physical integrity or those of one’s colleagues. So I don’t think it gains or loses any strategic advantage according to which analysis you adopt. Iain may have a different view. Prof Iain Scobbie: No, on the whole I would agree with that. I think one of the things is the human rights obligations probably do provide a higher standard of protection for the civilian. Katherine Craig: So the second one – and even if Israel was convicted how would we enforce it?

Prof Iain Scobbie: Are you talking about civil or criminal proceedings? Well first of all you have got to get the person in the dock, which can be problematic to say the least. [Inaudible]…universal jurisdiction? Dr Douglas Guilfoyle: Only if you could construe a grave breach of the Geneva Conventions. Prof Iain Scobbie: Maybe wilful killing. In which case, is the flag-state Turkey or Comoros? (That was a question to you Daniel [Machover].) Daniel Machover: I can tell you as a matter of practicality, Turkey is considering the application of universal jurisdiction, so that is a question that is being asked in Turkey. Prof Iain Scobbie: Okay, is Turkey part of the European arrest warrant system? Daniel Machover: It’s not part of the European arrest warrant system because that’s an EU arrangement and the Council of Europe are not EU members. They are a party to the 1959, as is Israel, European Convention on Neutral Assistance in Criminal Matters. Israel is a non-Council of Europe signatory to that Council of Europe treaty. Prof Iain Scobbie [to Dr Guilfoyle]: Okay, you’re the expert on crime not me. Dr Douglas Guilfoyle: I agree, I think the only basis we can think of off the top of our heads for universal jurisdiction is the grave breach of the Geneva Conventions described as wilful killing, which is quite a specific offence. It is not every breach of the laws of war that engages universal jurisdiction. So that would be the only foundation without further thought that I can see. Prof Iain Scobbie: It’s the question you’re getting, getting the conviction in the first place. That’s probably the really difficult thing. Katherine Craig: The third question was coming back to the definition of piracy. Dr Douglas Guilfoyle: Piracy is an act of violence, depredation or detention committed on the high seas, from one ship against another by private actors. That’s the only thing that piracy is. It has to be private actors. Now if the state wrongfully detains people on the high seas, wrongfully deprives them of their property and wrongfully commits other acts against them we just call that an act of state responsibility. The underlying wrongful act can still be dealt with by international law in some form, but it’s not necessarily a question of individual criminal responsibility in the way that piracy would be. Your claim would lie against the state for the wrong that it had done. I should have also mentioned earlier that the general principle in the law of the sea is that in the case of an unwarranted boarding on the high seas, a vessel and those aboard it must be compensated for any loss, harm or damage sustained. Now that is only referred to in the context of, say you had a suspicion of piracy, you go on board, you find it was unjustified, you should compensate. But I think it stands as a

more general principle outside that context and we would expect a right of compensation would arise in a case of any wrongful interdiction. Prof Iain Scobbie: Yes I think you can also draw that from the law of neutrality: the obligation to compensate. Dr Douglas Guilfoyle: So terrific, it doesn’t matter whether we are under war or peace, there is an obligation to compensate. [Emphasis by transcriber] Katherine Craig: So the next question in relation to your definition of proportionality in the context of either the advantage to be gained by the blockade or the interception. Prof Iain Scobbie: Proportionality works at two levels. We can be looking at the proportionality of the blockade as a whole, whether it was a lawful blockade. But I think if we are going into interception we are looking at the idea that the force used to intercept the vessel was not excessive that is an easier way to put it, which I think ties into what Douglas was saying about interception generally. So does that answer your question? Minimum is maybe putting it down a bit, but you’ve got some wiggle room there. Dr Douglas Guilfoyle: [Next question], act of war against Turkey. Katherine Craig: Either as a member of the EU or of NATO? Prof Iain Scobbie: I think Turkey is a member of NATO, so that brings in the NATO Charter. Dr Douglas Guilfoyle: Rights of war: if an armed attack occurs, and what the International Court of Justice has consistently told us is there is a gap between those two concepts. So while all force is prohibited, the force must rise to a certain level before you have a right of self-defence, and that would then trigger the right of collective self-defence in the NATO Charter. Where the ICJ has drawn that line is to say there is a distinction between, quote unquote, mere frontier incidents and incidents of sufficient scale and effect to amount to an act of aggression something like a full-scale attack by an army. I know that’s not particularly precise, but I think if we’re looking for a metric that’s equivalent to an ordinary invasion across a land border, no matter how regrettable or appalling the deaths encountered in this episode, I don’t think it constitutes an act of aggression on the scale of the invasion of another country. So while it was, on that metric, certainly could be judged a breach of two-four I don’t think it would rise to the scale that we would normally associate with a right of self-defence. Prof Iain Scobbie: I would agree with that. The only exception might be if this were repeated. Dr Douglas Guilfoyle: Yes, if it was repeated or if you had blown the vessel out of the water with the loss of hundreds of lives, we’d be talking about something different, and again the ICJ didn’t directly say it but it strongly inferred in a case

called “oil platforms” that a sufficiently grave attack on a merchant vessel an article 51 right of self-defence under the UN Charter. Prof Iain Scobbie: I would say that “oil platforms” is not a good case to rely on, because the question of self-defence really wasn’t working. But that’s us being lawyers. Katherine Craig: The next question, the right to supply aid. Prof Iain Scobbie: There is no duty for states to supply aid that might be the better way to approach it. I suppose on a construction of both San Remo and Convention IV in a way there is a right to supply aid because Israel, either because it is the blockader or because it’s the occupant, has a duty to ensure that aid gets through. So in a way, yes they [e.g. Turkey] could force it. The one thing though which might be an odd way out is that in blockaded waters there is a fair amount of authority to say that neutral warships have the right to sail. So if the Turks supplied their own warships they could maybe argue that the blockade did not apply to their own warship. What do think about that Douglas? Dr Douglas Guilfoyle: I was just thinking about the doctrine of convoy. Does this apply in blockade, or only to contraband? Prof Iain Scobbie: That’s contraband, that’s the law of neutrality. Dr Douglas Guilfoyle: I suppose you could attempt to run the blockade with a warship, it begins to smack of the Cuban missile crisis. Prof Iain Scobbie: The Cuban missile quarantine. It wasn’t a blockade. Dr Douglas Guilfoyle: It wasn’t a blockade no, just something that looked an awful lot like one. But it wasn’t one, no. Prof Iain Scobbie: Because it wasn’t a belligerent act. This question about what international fora can these issues be raised. I think this demonstrates another failing of the law of armed conflicts since the Second World War. One of the things about after the conclusion of the UN Charter, people thought we really don’t need to worry about the laws of war or the laws of neutrality or whatever because there is never going to be another armed conflict; the UN will take care of it. And one of the things that’s happened is a lot of the traditional law of armed conflict has just disappeared. One of the institutions that has really rarely been used since World War II is the institution of protecting powers, where the parties to a conflict will appoint another state to look after their interests during the conflict with other party. So if we had protecting powers in this conflict a lot of these problems could be dealt with through diplomatic channels. Having said that we don’t so we’re left probably with the UN system. There is the Security Council, but that is subject to veto.

I am pretty sure that there is jurisdictional link by which, say Turkey could take Israel to the International Court of Justice to complain about the interception, although there might be room for an advisory opinion. What about the Law of the Sea Tribunal? Although that wouldn’t work because Israel is not a party. Dr Douglas Guilfoyle: To reinforce the point, the only other forum that might conceivably be invoked is the International Tribunal for the Law of the Sea: one Israel is not a party, and two the compulsory dispute resolution mechanisms don’t apply to military activities. Purely hypothetically, we could look to say the International Tribunal for the Law of the Sea, but the short answer there is that this institution only exists with jurisdiction over parties to the law of the sea convention, and Israel is not one. Even then its dispute settlement procedures have a carve out for military activities. Prof Iain Scobbie: But if we said they were law enforcement? Dr Douglas Guilfoyle: We would still have the interpartaise [? 20:12] problem. Katherine Craig: The next question, the declaration under Article 12. Prof Iain Scobbie: First state your crime. Let’s assume that there is a definition of crimes that might fit this situation. We’re maybe looking at Article 8 2b 123 of the ICC Statute. It’s a Turkish flagged ship, Turkey is a party to the ICC Statute I think… no, it’s not a party to the ICC Statute. [Anonymous voice: “…London Declaration…”] Okay well we’re going to run into the problems of statehood then. I wonder if that really is the best way to go to rack up the crime to the ICC. There is always the practical problem of how do you get your hands on them? Dr Douglas Guilfoyle: I think you then have Article 97 issue. Under the ICC Statute you can’t surrender the person to the court in contravention of the ordinary law of state immunity, and if I was advising the soldiers the first thing I would do if I was aware there was an international arrest warrant out for me is say “what I did was done as an act of state, and I’m entitled to benefit to state immunity and I can’t be passed to the court in any event”. Not every wrongful killing, even necessarily in the laws of war, is going to fit within the ICC Statute and that creates a difficulty, quite apart from the difficulty of getting your hands on the suspects, and getting them before the court. I’m not sure the ICC is a good fit. It’s theoretically possible.

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