Pakistan’s burden
International law imposes an unqualified obligation on Pakistan to punish
the conspirators behind the Mumbai attacks
BY AG NOORANI
A leadership that
neglects public opinion in pursuit of a foreign policy dooms itself to defeat. A
leadership that
is slave to public opinion betrays the national interest and renders itself
impotent. All the more so if it is led by ignorant TV anchors and the
‘chatterati’ they assemble on TV channels seeking to roast their chestnuts in
the fires of a national tragedy. It happened in 1999 at the time of the hijack
to Kandahar of Indian Airlines Flight IC-814, in 2001 during the Agra summit and
was repeated after November 26 with a singular lack of sense, scruple or
decency. Criticism has centred on the panellists but the anchors who invited
them to suit their own elevated tastes have gone scot-free.
All this had an impact on diplomacy. Pakistan’s initial reaction
to the attacks on November 26 was laudable. When the two prime ministers spoke
on the phone on November 28, it was natural for Manmohan Singh to invite the
director general of the ISI, as it was natural for Yousaf Raza Gilani to agree
and for the ISI to object. President Asif Ali Zardari offered to send "a
director". The government spoke of "a representative" of the ISI. The crucial
question surely is the degree of cooperation in the investigation. Sending the
intelligence chief was too much to expect of any state, all the more so
given the history and status of the Pakistan army. Within moments of the
announcement Lt Gen Asad Durrani, former ISI chief, expressed his dismay.
Someone of lower rank should go, the DG following him if need be. He was right.
There was little understanding of that in India, given the
immaturity of some, and even less in Pakistan of the outrage in India and the
gravity of the crime. But now the electronic media went berserk.
Harinder Baweja reported after a trip to Pakistan: "Senior
journalists in Pakistan admitted that briefings from the ISI changed the
post-Mumbai discourse. Reacting perhaps to the loud, jingoistic demands on
Indian television channels for action against Pakistan, the ISI told a select
group of journalists that India had in fact ‘summoned’ their chief.
Jamaat-ud-Dawah Amir, Hafiz Saeed – with a clear nod from his handlers –
appeared on one news channel after another, making the same points, that India’s
list of 20 most wanted, which also includes him, was old hat, that India was
playing the blame game without evidence, that India had its own band of ‘Hindu
terrorists’ and India should give freedom to Kashmir and end the matter once and
for all. The leak, soon after, of the hoax call, purportedly made by external
affairs minister, Pranab Mukherjee, to President Zardari, sealed the debate –
India-bashing was back in business. The jingoism overtook the more important
debate of the threat Pakistan itself faced from terror networks flourishing on
its soil" (Tehelka, December 20, 2008).
It was the media’s foolish charge against Pakistan of "backing
out" that fouled the atmosphere. Some Pakistani commentators and politicians
needed little provocation to foul it anyway.
In his speech in the Lok Sabha on December 11, Mohammed Saleem
of the CPI(M) remarked that in 2001 the media followed the government on
Operation Parakram. "But now it is the media which is leading the way and wants
the government to follow it."
It was absurd to accuse Pakistan of "backing out" and futile to
expect it to hand over any of its nationals to India. Like the European
Convention on Terrorism, the SAARC Regional Convention on Suppression of
Terrorism gives a choice to the state to which a request for extradition is
made. It must either extradite the offender on its soil or "submit the case
without exception and without delay to its competent authorities so that
prosecution must be considered" (Article IV).
On this, Pakistan has been consistently and grossly culpable.
This has led India to suspect, with good cause, that its demand for evidence is
made only to find fault with the evidence.
Obligation on Pakistan
In his article in The New York Times on December
8, President Asif Ali Zardari said: "Supporters of authoritarianism in Pakistan
and non-state actors with a vested interest in perpetuating conflict do not want
change in Pakistan to take root." Only Pakistanis can have such motives. The
"non-state actor" is a national who acts independently of the state unlike the
"stateless" one who has no nationality. Zardari’s description is apt. But he
seems not to realise that in law this imposes an unqualified obligation
on Pakistan to punish those Pakistani nationals, an obligation recognised in all
works on international law.
Those Pakistanis have been identified by the media in Pakistan,
notably Dawn and Geo News TV (both on December 12). Mohammad Ajmal Amir
is a Pakistani citizen. On December 14, Britain’s prime minister, Gordon Brown,
identified his affiliation. "We know that the group responsible for the Mumbai
attacks is the Lashkar-e-Tayyaba."
We owe a huge debt to the erudite chief justice of India,
Justice KG Balakrishnan, for raising the issue – even if it be in error.
Speaking at a conference in New Delhi on December 13, in the presence of the
prime minister and a distinguished gathering of lawyers and judges from abroad,
Justice Balakrishnan censured the media first and next proceeded to lay down the
law.
His remarks, reported in The Hindu of December 14, bear
quotation in extenso. "In the absence of bilateral treaties for extradition or
assistance in investigation there is no clear legal basis for
international cooperation in investigating terrorist attacks. The pursuit
of terrorists alone could not be a justification for arbitrarily breaching
another nation’s sovereignty. Yet another practical constraint that has been
brought to the fore with the Mumbai attacks has been the question of holding
governments responsible for the actions of non-state actors. While one can say
that there is a moral duty on all governments to prevent and restrain the
activities of militant groups, the same is easier said than done."
These remarks offend every single rule in the book. First, they
were made on a matter of great sensitivity, which is the subject of current
diplomatic exchanges. Secondly, they were not really germane to the topic of the
conference, namely terrorism in the context of the rule of law and human rights,
on which he sensibly warned against wanton disregard of human rights. Thirdly,
there was no occasion for the excursion. Lastly, his remarks were in gross and
egregious error.
It is one thing to say that in the absence of bilateral treaties
for extradition a national cannot be extradited. But even Pakistan does not
contend that there is no duty to render "assistance in investigation". On the
contrary, its leaders repeatedly, profusely offer such assistance. But the CJI
lumps extradition with investigation and confidently asserts that "there is no
clear legal basis for international cooperation in investigating terrorist
attacks". This, before a distinguished international gathering, at a time when
the world’s eyes are upon us and when the people are crying for redress! What
was the provocation for the obiter? As grossly erroneous is his denial of a
legal duty on the "governments responsible for the actions of non-state
actors". He amplified: "While one can say that there is a moral duty on
all governments to prevent and restrain the activities of militant groups on
their soil, the same is easier said than done."
ICJ rulings
Was he unaware of the United Nations’ resolutions on the subject
and indeed of the Security Council’s decisions that very week? He seems to be
ignorant of a landmark ruling of the International Court of Justice that is
cited in every textbook for undergraduates in law – the Corfu Channel
case between Britain and Albania (1949) (ICJ Reports 4:22). The court
ruled that it is "every state’s obligation not to allow knowingly its territory
to be used for acts contrary to the rights of other states". The court is
concerned with law, not morality.
Another important ruling fortifies it. On June 27, 1986 the
International Court of Justice ruled inter alia that by supporting
anti-government forces in Nicaragua the United States was in breach of its
duties under customary international law. In view of the importance of this
ruling, it is appropriate to set out here extracts from the authoritative
official report of the judgement (International Court of Justice Report 1986,
p. 14).
The court observed: "There appears now to be general agreement
on the nature of the acts which can be treated as constituting armed attacks. In
particular, it may be considered to be agreed that an armed attack must be
understood as including not merely action by regular armed forces across an
international border but also the sending by or on behalf of a state of armed
bands, groups, irregulars or mercenaries which carry out acts of armed force
against another state of such gravity as to amount to (inter alia) an actual
armed attack conducted by regular forces, or its substantial involvement
therein.
"This description, contained in Article 3, paragraph (g), of the
Definition of Aggression annexed to General Assembly Resolution 3314 (XXIX), may
be taken to reflect customary international law. The court sees no reason to
deny that in customary law the prohibition of armed attacks may apply to the
sending by a state of armed bands to the territory of another state, if such an
operation because of its scale and effects would have been classified as an
armed attack rather than as a mere frontier incident had it been carried out by
regular armed forces." The obligation is greater if the offenders are sent by
the state. It however exists even if they act without the state’s consent or
knowledge. It is elementary.
This was not an enunciation of new law but affirmation of
established old law. The subject had been raised as long ago as 1934 in
connection with the assassination of the Yugoslav monarch, King Alexander, at
Marseilles by certain terrorists. Yugoslavia formally accused the Hungarian
government, before the League of Nations, of tacitly conniving in the
assassination inasmuch as it had knowingly allowed the major preparations for
the deed to be carried out on Hungarian territory. In the course of the
settlement of this dispute between the two nations the League of Nations Council
affirmed that two duties rested on every state: (1) to neither encourage nor
tolerate on its territory any terrorist activity with a political purpose; (2)
to do all in its power to prevent and repress terrorist acts of a political
character and for this purpose to lend its assistance to governments which
request it.
A great authority, Edwin M. Borchard, wrote: "A long line of
cases has established certain qualifications upon the non-liability of the
government for the wrongful acts of private individuals. These consist in
certain manifestations of the actual or implied complicity of the government in
the act, before or after it, either by directly ratifying or approving it or by
an implied, tacit or constructive approval in the negligent failure to prevent
the injury, or to investigate the case, or to punish the guilty individual, or
to enable the victim to pursue his remedies against the offender. The
claimant ordinarily has the burden of proving the negligence of the government...
The failure of a government to use due diligence to prevent a private
injury is a well-recognised ground of international responsibility… A more
frequent basis of governmental liability is the failure, after reasonable
opportunity, to bring the offenders to justice. Incidental to this ground of
liability is the inadequate punishment of guilty individuals, negligently
permitting them to escape or an inexcusable delay in investigating the facts."
The test is not actual complicity. It is "negligence" and failure to exercise
"due diligence".
One of the most highly respected authorities, Oppenheim’s
International Law, holds that "a state is bound" – in law, that is, not only
in morality – "not to allow its territory to be used for such hostile
expeditions and must suppress and prevent them" (Ninth Edition, Vol. 1, p. 394).
He adds, "A state also has a duty to do all it can to prevent and suppress
attempts to commit common crimes against life or property where such crimes are
directed against other states" (ibid, p. 400).
True, all injurious acts cannot be prevented but a pattern of
grave crimes can be. For "international law imposes the duty upon every state to
exercise due diligence to prevent its own subjects, and such foreign
subjects as live within its territory, from committing injurious acts against
other states" (ibid, p. 549).
Pakistan fails the test
This then is the test – exercise of due diligence. Pakistan has
failed to meet it. It cannot go scot-free. It is liable to pay compensation to
the victims and India would be justified in claiming it on behalf of
wronged nationals.
Professor Antonio Cassese, an Italian jurist, was judge and
president of the International Criminal Tribunal for the former Yugoslavia. His
work, International Law (Oxford University Press; Second Edition, 2005),
has been widely acclaimed. He writes:
"In the case of unlawful acts committed by individuals not
acting as de facto state officials, for instance against foreigners or foreign
authorities, the state on whose territory the acts were committed incurs
international responsibility only if it did not act with due diligence, if it
omitted to take the necessary measures to prevent attacks on foreigners or
foreign assets or, after perpetration of the unlawful acts, failed to search for
and duly punish the authors of those acts as well as pay compensation to the
victims. In other words, in the case of violence and other unlawful acts against
foreigners, the state is not responsible for the acts on the individuals: it is
accountable only if its own ‘conduct by omission’ may be proved, that is, it
failed to act in conformity with international legal standards.
"The US Diplomats and Consular Staff in Tehran case,
decided in 1980 by the ICJ, is illuminating. The court divided the Iranian
militants’ attack on the US embassy and consular premises in Tehran into two
phases. In the first stage the attack was carried out by militants who had no
form of official status as recognised ‘agents’ or organs of the Iranian state.
Therefore, according to the court, the militants’ conduct in mounting the
attack, storming the embassy and seizing the inmates as hostages could not be
‘imputable to the state on that basis’. Nevertheless, Iran was held responsible
in that it failed to protect the US premises as required by international law.
The second phase started after completion of the occupation of the US embassy.
At this stage the Iranian government was legally bound to bring to an end the
unlawful occupation and pay reparation. Instead, it approved and endorsed the
occupation." That adjudication was part of an accord. Will Pakistan pay up or
submit the dispute to arbitration?
In the very nature of things, direct evidence of culpability
will be hard to secure. In the Corfu Channel case, the ICJ ruled that the
"fact of this exclusive territorial control exercised by a state within its
frontiers has a bearing upon the methods of proof available to establish the
knowledge of that state as to such events. By reason of this exclusive control
the other state, the victim of a breach of international law, is often unable to
furnish direct proof of facts giving rise to responsibility. Such a state should
be allowed a more liberal recourse in inferences of fact and circumstantial
evidence…
"The court must examine therefore whether it has been
established by means of indirect evidence that Albania has knowledge of
mine-laying in her territorial waters independently of any connivance on her
part in this operation. The proof may be drawn from inferences of fact provided
they leave no room for reasonable doubts. The elements of fact on which these
inferences can be based may differ from those which are relevant to the question
of connivance." There is a lesser burden of proof on failure to exercise "due
diligence" (Principles of Public International Law by Ian Brownlie;
Oxford University Press; Sixth Edition, p. 428). "Indirect" evidence suffices.
Lashkar’s ‘depredations’
India and Pakistan both inherited Macaulay’s Indian Penal Code
1860. It is unlikely that the code as adopted in Pakistan is radically
different. Section 125 makes it an offence to wage war against "any Asiatic
power" which is "at peace" with India. Section 126 reads thus: "Whoever commits
depredation, or makes preparations to commit depredation, on the territories of
any power in alliance or at peace with the Government of India, shall be
punished with imprisonment of either description for a term which may extend to
seven years and shall also be liable to fine and to forfeiture of any property
used or intended to be used in committing such depredation or acquired by such
depredation."
It is not inapt to characterise the Lashkar-e-Tayyaba’s attack
on Indian soil, spread over the years, as "depredations". They have been
documented in the writings of eminent Pakistani authors and a French authority
on militants who exploit Islam for political ends – Islamist Networks by
Mariam Abou Zahab and Olivier Roy (Hurst & Co, London, 2004); Frontline
Pakistan by Zahid Hussain (IB Tauris, London, 2007); The True Face of
Jehadis by Amir Mir (Mashal Books, Lahore, 2004); and A to Z of Jehadi
Organisations in Pakistan by Muhammad Amir Rana (Mashal, 2004).
There was the attack on the Red Fort in Delhi on December 22,
2000 and on Parliament House on December 13, 2001 (by the Jaish-e-Mohammad of
Masood Azhar); the Mumbai train blasts in 2006; and now the attacks of November
26. By the Vienna Convention on the Law of Treaties, the India-Pakistan Joint
Statement constituted a "treaty" and President Pervez Musharraf’s assurance is
legally binding – to "not permit any territory under Pakistan’s control
to be used to support terrorism in any manner". True, attempts were made on his
life as well, notably on December 14 and 25, 2003. They were by "Brigade 313", a
loose alliance of five bodies, including the Lashkar and the Jaish. That does
not affect the Lashkar’s culpability vis-à-vis India. It shows that it is
a menace to Pakistan as well.
Lashkar-ISI nexus
The Lashkar’s nexus with the ISI is well established. "LeT had
worked in close coordination with the ISI which also provided support to launch
the militants across the border" (Zahid Hussain, p. 55). Dr Khalid Mehmood
Soomro of the Jamiat Ulema-e-Islam asked: "Is there a single militant training
centre in Pakistan which can operate without the consent of the Pakistan army?"
Zahab and Roy also hold the ISI responsible (p. 53).
The Lashkar is a military wing of the Markaz-ud-Dawa-wal-Irshad
(Centre for Preaching and Guidance). It had two objectives: dawa
(preaching) and jihad. Its former chief, Hafiz Mohammad Saeed, believed that
both "are of an equal and inseparable importance". Jihad had been neglected, he
feels.
The training camps are in Pakistan-occupied Kashmir (POK). Zahab
and Roy mention three, the principal one being Um al-Qura (sic) at Muzaffarabad.
Five hundred mujahids are trained every month.
Rana, more authoritative than most, lists five – Muaskar Tayyaba,
Muaskar Aqsa, Muaskar Ummal Qara, Muaskar Abdullah bin Masood and Markaz
(Centre) Mohammed bin Qasim. The first three are at or close to Muzaffarabad;
the fourth is elsewhere in POK; the last is in Sindh. Ten thousand men had been
trained by 2004. The boss who guided "Kasab", Zaki-ur-Rehman Lakhvi, is the
Lashkar’s supreme commander.
The Lashkar practises sheer savagery. "Women and babies are
killed and victims are beheaded and eviscerated" (Zahab and Roy, p. 40). The
"two main targets are India and Israel: Hindus and Jews," Mir writes (p. 110).
But Christians are also targeted. The Lashkar vows to liberate Spain, over which
Muslims ruled for 800 years, and "the whole of India".
After the attack on the Red Fort, Hafiz Mohammad Saeed told
Zahid Hussain: "The action indicates that we have extended the jihad to India"
(p. 58). What was Islamabad doing all this while?
The seemingly innocuous "educational" establishment at Muridke
is only the first step for new recruits before they are sent to the training
camps in POK. There is a 21-day basic course, Dawa Aam, and a three-month
advanced course, Dawa Khas.
In February 1998 Osama bin Laden announced the setting up of an
International Islamic Front for Jihad, of which the Lashkar is a member. The
Lashkar’s reach is global. Its men fought in Iraq, Bosnia, Chechnya, the
Philippines, Eritrea and Somalia (Rana, p. 334).
The Lashkar was banned on January 13, 2002 and also put on the
United States state department’s list of terrorist bodies. Rana records what
happened next: "But Jamaat-ud-Dawah had already taken precautionary measures
prior to this. On December 24, 2001 the Amir of Markaz-ud-Dawa-wal-Irshad and
Lashkar-e-Tayyaba, Hafiz Mohammad Saeed, addressed a press conference in which
he announced the change of Markaz-ud-Dawa-wal-Irshad’s name and an end to his
leadership of Lashkar-e-Tayyaba. The same day the State Bank of Pakistan sent
out a circular freezing the accounts of both Lashkar-e-Tayyaba and Ummah
Tameer-e-Nau. Professor Hafiz Mohammad Saeed announced that his organisation’s
new name would be ‘Jamaat-ud-Dawah’ and he would remain its chief. The new chief
of Lashkar-e-Tayyaba would be Maulana Abdul Wahid Kashmiri. Maulana
Zaki-ur-Rehman Lakhvi would be its supreme commander and the organisation would
be limited to Kashmir.
"Its administration would also be moved to Azad Kashmir,
Jamaat-ud-Dawah would provide assistance to Lashkar-e-Tayyaba in Pakistan and
any donations meant for the latter could be sent to the former...
Lashkar-e-Tayyaba is functioning freely in Azad Kashmir while many
Jamaat-ud-Dawah offices in Pakistan are being used as Lashkar-e-Tayyaba
offices. In an operation against jihadi and sectarian organisations, 45 men
from Lashkar-e-Tayyaba and Jamaat-ud-Dawah were arrested, most of whom were
ordinary workers or mujahids. The leadership had already moved to Azad Kashmir"
(p. 328). As Zahid Hussain remarks, the new Jamaat "was just a cover to avoid
international scrutiny" (p. 59).
When Pakistani foreign minister, Shah Mehmood Qureshi, speaks of
charitable work by the Jamaat, he imposes a strain on credulity. The money goes
for warfare. Amir Mir points out that "in practical terms, no step had ever been
taken to dismantle or even disarm the Lashkar" (p. 97). Rana lists its 48
networks in Pakistan and five in POK, complete with the names of the chiefs and
the addresses (pp. 340-2).
The Lashkar is a menace to Pakistan’s democracy and also to
India. President Zardari and some of his colleagues persist in a state of
denial. Zardari performed a somersault after his New York Times article
of December 8 – only a little over a week later, in his interview to the BBC and
to an Indian TV channel. Prime Minister Gilani is wide of the mark when he talks
of "defending" Pakistan. Whoever threatened war, pray? There were no troop
movements by India, unlike the folly of 2001; no threats and no charges. Both
Prime Minister Manmohan Singh and minister for external affairs, Pranab
Mukherjee, have been extremely careful to speak of "elements from Pakistan",
never of its government. Frankly, what does Islamabad expect India to do in the
circumstances?
We have in Manmohan Singh a prime minister who staked his
prestige on the success of the peace process. Pranab Mukherjee questioned
Operation Parakram courageously when few dared to do so. In an interview
published in The Indian Express on January 13, 2002, he criticised
the demand that "Pakistan must stop supporting terrorism and it’s only then we
are prepared to talk". He said: "Surely the problem cannot be solved by
launching a war against the country which is harbouring the terrorists. We are
not in 1914 when an Austrian prince was killed and Europe fought World War I...
They shouldn’t have created this war hysteria."
He is quite satisfied if the culprits are "tried as per
Pakistani laws". India can try the Mumbai police’s "Kasab" for the crimes he
personally committed, as it did the perpetrators of the Mumbai blasts of March
1993. But that will not affect the conspirators. The charge is conspiracy to
create mayhem. Its leaders, the conspirators, are in Pakistan. Will Pakistan
agree to have a single trial of the surviving terrorist together with his
mentors dwelling in Pakistan? India can provide the evidence at its end provided
Pakistan shares fully the evidence at its end. Its amour propre
will be respected. The trial will be on its soil but it will be a real trial,
not a farce. It will be based on shared evidence with Indian officials assisting
Pakistan’s prosecutors in the court trying the conspiracy charge.
That, I fear, is unlikely to happen. More likely, the farce of
2002 will be repeated. This time the US and the United Kingdom will not be
quiescent, nor will India. Islamabad is mistaken if it imagines that it can ride
out the storm and time will heal. A promising peace process will suffer. The two
national security advisers, Major-General Mahmud Ali Durrani and MK Narayanan,
had a good meeting on October 14. Durrani wrote an excellent book, India &
Pakistan: The Cost of Conflict and The Benefits of Peace. On November 25,
the home secretaries met in Islamabad to discuss security. It would be a shame
to let the entire peace process since 2004 go up in smoke. President Zardari
must send a representative of the ISI in a delegation led by a senior minister,
or Durrani can come. We must devise a fair solution to this impasse. The
alternative to direct dialogue is American intervention.
Lt Gen Asad Durrani rightly said: "The US is not an honest
broker; it has interests in both our countries. India always said it did not
want US intervention – now is the time for India and Pakistan to cooperate with
each other and keep that intervention out. We can do this ourselves" (Tehelka,
December 13, 2008).
Nawaz Sharif, a former prime minister who initiated the peace
process in 1997, gave sound advice to his country on December 11: "Pakistan
should seriously engage India. We should invite them and we should go to India
to take a look at the evidence (in the Mumbai attacks). We should do whatever is
possible to help India and combat terrorism jointly. The blame game is not in
favour of Pakistan and India."
Quite needlessly, Pakistan’s pronouncements propound a "chicken
or egg" dilemma. On December 14, President Zardari said Pakistan could not "come
up with proof earlier" than India but "we are investigating". Prime Minister
Gilani said the matter could be pursued "once" India provided the evidence.
However, Pakistan had begun its own investigations into the Lashkar. Would
Pakistan be lacking in evidence if the criminals had not struck in Mumbai?
India can possess evidence only of (a) the actual physical
attacks and (b) their perpetrators. Identifying their leaders and instigators is
a matter of inference from the evidence collected in Mumbai and indeed the
Lashkar’s proven and well-established record. By the world court’s tests, that
evidence is enough to warrant India’s demands on Pakistan to furnish further
evidence about the mentors of these criminals. Pakistan alone can collect and
provide evidence of the conspiracy which was hatched on its soil. Pranab
Mukherjee has left it with the option of a trial in Pakistan. A farcical trial
would be an insult. India can try the man in its custody. Pakistan alone can
hold a credible trial of his handlers. Each side can provide the other with
evidence bearing on the trial on its territory.
Pakistan must act on Nawaz Sharif’s advice. It would be a shame
to wreck the most promising peace process that India and Pakistan have known in
recent decades.
There is a way out of the impasse. International law suggests
India can give Pakistan evidence confined strictly to the nationality of Ajmal
Amir. Once it does that the onus shifts unavoidably on Pakistan to provide
evidence of his fellow conspirators and their deeds over the years. India’s
evidence will be based on admissions in the Pakistani and foreign media besides
the evidence in its own possession. Once Pakistani nationality is proved
Pakistan acquires all the obligations that international law imposes on it.
Pakistan will have to explain how its national was able to mount such an attack
on Indian soil and provide the names of his conspirators, his training camp and
the name and working of the organisation that promotes such activity.
(AG Noorani is an advocate, Supreme Court of India and a
well-known political commentator and author. This article was published in
Frontline, January 3-16, 2009.)
Courtesy: Frontline; www.frontlineonnet.com
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