International War Crimes
War crimes are crimes committed in violation of international Humanitarian law .According to this law, in conduct of hostilities the opposing forces are to be governed by three principles: necessity, humanity and chivalry. Necessity ensures that only conduct essential to achieving victory is permitted, hence the proportionality between the contribution attacks on a target will make the ultimate victory and damage or injury inflicted upon the target. In other words, necessity is invoked only to achieve a military objective on the battlefield, but not political or other objectives .Humanity, or humatarianism, governs the degree of permitted violence, thereby outlawing unnecessary or excessive action. Chivalry demands the exercise of fairness and mutual respect between the opposing forces; hence the outlawing of dishonourable means and methods of combat like perfidy, wrongful use of protected emblems while engaging in attack, and denying quarter.
War crimes under International Criminal statute are divided into four categories. War crimes in international arm conflicts are covered by article 8(2)(a) which prescribes grave breaches of Geneva Conventions of 12th august 1949, and by article 8(2)(b)(hereinafter GC IV) which prescribes other serious violations of laws and customs applicable in international armed conflict, within the established framework of international law. War crimes in non-international armed conflict are covered by Article 8(2)(c),which prescribes serious violations of Article 3 common to the four Geneva conventions of 12th august 1949,and by article 8(2)(e),which prescribes ‘other serious violations of the laws and customs applicable in armed conflict not of an international character, within the conventional model of international law.
This article deals with war crimes mentioned under article 8(2) (a)
Class of Perpetrators
On Request from the Governments of Belgium, Costa Rica, Finland, Hungary, the Republic of Korea, and South Africa and the Permanent Observer Mission of Switzerland regarding the text prepared by the International Committee of the Red Cross on article 8, paragraph 2 (b), (c) and (e) of the Rome Statute of the International Criminal Court it was observed that ‘All types of persons could be held criminally liable for war crimes Not only soldiers ,but also men in the street, members of the government, party officials and administrators, industrialists and businessman ,judges and prosecutors, doctors and nurses, executioners, and concentration camp inmates were found guilty of War crimes in post-WWII trials’.
An example of civilian being held responsible for war crimes as is that of former foreign minister of Japan, ‘Hirota Koki’ , who was convicted by the Tokyo tribunal for war crimes committed during the ‘Rape of the Nanking’.
In Akaseyuthe accused wore a military jacket, carried a rifle and aided the military on their arrival in his commune where he was mayo. He undertook number of tasks like reconnaissance mission and mapping of the commune, and setting up of radio communication. yet, trial chamber I of the ICTR ruled that the accused could not incur Individual Criminal responsibility for war crimes because prosecution had failed to prove beyond reasonable doubt that the accused was a member of the armed forces, or that he was lawfully expected and delegated, as a public official or agent or person otherwise holding public authority or representing the government, to support or fulfil the war efforts. It has been found that the international criminal courts have been very careful in punishing the civilians
Characterization conflict as International
An Armed conflict is international if it takes place between two or more states. An internal armed conflict breaking out on the territory of one state may become international or, depending upon the circumstances, be international in character alongside an internal armed conflict ,if another state intervenes in that conflict through its troops, or if some of the participants in the internal armed conflict act on the behalf of the other state.
It was held by t Appeals Chamber of the International Criminal Tribunal for Yugoslavia(hereinafter ICTY) held in Tadic case that the test is one of a control by a foreign power over paramilitary units and other Irregulars in the conduct of hostilities in other state ‘and, by the same token a relationship of dependence and allegiance’ of these irregulars vis-a-vis the foreign power.
Protected persons or property
The chapeau of article 8(2) (a) of the ICC statute provides that grave breaches of the Geneva convention of 1949 are the acts enumerated in that provision ‘against persons or property protected under the provisions of the relevant Geneva Conventions .In essence, protected persons are those who, for some reason, are not taking a direct or active part in the hostilities, for example, because they are wounded, sick, hors de combat, or are civilians .
‘Protected property’ are not defined as such but they are mentioned in Geneva Convention of 1949.They include medical units and establishments, medical transports. The material of mobile medical units of the armed forces which fall into the Hands of the enemy shall be appropriated for the aid of sick and wounded. The material ,buildings and stores of fixed medical establishments of the armed forces shall remain subject to the laws of war, but may not be diviated from that function as long as they are required for the care of wounded and sick.
Under article 34 and 35of Geneva Convention I 1949, the real and personal property of aid societies which are admitted to the privileges of the Convention shall be regarded as private property and medical transports are also protected.
Article 8 (2) (a) (i) War crime of wilful killing.
According to existing international jurisprudence, the actus reus of this offence is the taking of lives of protected persons by whatever means .It can be committed either an act or by or omission, provided that the conduct of the accused is a substantial cause of the death of the victim. The mens rea to establish the crimes of wilful killing and murder as recognised by the Geneva Conventions is present where there is demonstrated an intention on the part of the accused to kill, or inflict serious injury, in reckless neglect of human life. The accused can also be convicted if the prosecution can prove his wilful neglect that amounts to recklessness in the sense of gross criminal or wicked negligence, or gross and criminal disregard of accused’s duties.
Article 8 (2) (a) (ii)-1War crime of torture or inhuman treatment, including biological experiments
Torture may be prosecuted as a grave breach, a serious violation of humanitarian law. A crime against humanity, or genocide. In general, the crime of torture under customary international law comprises ‘acts or omissions, by or at a instigation of, or with the consent or acquiescence of an official, which are committed for a particular prohibited person and cause a severe level of mental or physical pain or suffering’.
Torture is the most specific of those offences of mistreatment constituting ‘grave breaches’. In the context of torture as a war crime, the following elements are required:
i. Torture consists of infliction, by act or omission, of severe pain or suffering, whether physical or mental ;in addition
ii. This act or omission must be intentional
iii. It must aim at obtaining information or a confession, or at punishing , or humiliating intimidating, or coercing the victim or a third person, or at discriminating ,on any basis, against the victim or a third person
iv. It must be linked to an armed conflict.
v. At least one of the persons involved in the torture process must be a public official or must at any rate at in a non- private capacity, e.g. As a de facto organ of a state or any other-wielding entity
The appeals chamber of the ICTY in Furundzija upheld the conclusion of the Trial Chamber in that case that an act short of rape could also be a torture. In this case, amidst the laughter and stares of on-looking soldiers, the accused rubbed a knife against a nude women’s thighs and stomach threatening the insert the knife into her vagina if she didn’t tell the truth in answer to the interrogation by the accused .These acts altogether were held to be intimidating and humiliating to the extent that they had devastating impact on the physical and the mental state of the victim.
It is an intentional act or omission which, if judged objectively, is deliberate and not accidental and which Causes serious mental or suffering or injury, or Constitutes a serious attack on physical or mental integrity or health, or is contrary to the fundamental principle of human treatment, in particular an attack on human dignity.
Examples of inhuman treatment include forcing brothers to perform fellatio on one another and forcing a father and son to beat one another repeatedly over a period of ten minutes. In Celebici, one of the defendants was found guilty of inhuman and cruel treatment through his use of electric shock device on his victims.
They are a form of inhuman treatment that is a grave breach.
The use of “bacteriological methods of warfare” has been banned under international law since the 1925 Geneva Protocol on chemical and biological weapons, which was a reaction to the horrors of poison gas as employed in World War I. The term is not defined in any provisions of four Geneva Convention of 1949 or their additional protocols. The relevant provisions of the conventions just prescribe any form of ‘scientific experiment’, even where carried out with the consent of the victim, if such experiment is not justified by medical, dental, or hospital treatment of the victim and not carried out in his interest. The elements of crime adopted by PCNICC(reports made by the International Committee of the Red Cross) to guide the International Criminal Court in this instance are very little. The perpetrator must have subjected one or more persons to a particular biological experiment which seriously endangered the mental or physical health of that person. The intent of the experiment must have been non-therapeutic and neither justified by medical reasons nor carried out in such person’s or person’s interest. the term need more explanation as in certain cases there may not be endangering of health of the person as experiment of birth control measures but still the person might not want those experiments to be conducted on him. though the experiment can be in his interest in future and in the interest of public at large but it may not be consented by him then in these cases whether it be considered as a war crime or not. During the World war Germans and the Japanese built death camps in the period leading up to World War II. The objects of concentration camps of Japanese, was not as same as Germans, the extinction of a people, but instead was to use imprisoned common criminals and prisoners of war as guinea pigs in biological and, to a lesser extent, chemical warfare experiments.
The Factories were employing at least two thousand people each, including (apart from the ordinary soldiers used to guard the facilities) some twenty thousand physicians, veterinarians, zoologits ,microbiologists, and plant biologists. At a conservative estimate, their ‘Mephistophelian research project’ of testing prospective pathogens and biological weapons on the camps’ inmates involved between twelve and fifteen thousand men, women, and children. In Brandt the US military tribunal in 1947 at Nuremberg found 16 people guilty for their involvement in Nazi human experimentation and mass murder under the guise of euthanasia.
Article 8 (2) (a) (iii) War crime of wilfully causing great suffering
The offence is distinguishable from torture primarily on the basis that the alleged act need not be committed for a prohibited purpose as is required for an offence of torture. Trial chamber II of the ICTY held in Celebici that the constituent elements of crime are:
‘An act or omission that is intentional being an act which, judged objectively, is and not accidental and deliberate, which causes serious mental or physical pain or injury. It covers those acts that do not meet the purposive requirements for the offence of torture, although manifestly all acts constituting torture could also fall within the ambit of this offence. In this case itself, three of the accused were found guilty of this offence as well as the offence of cruel treatment of having subjected the inmates of Celebici prison camp to an atmosphere of terror created by the killing and abuse of detainees and to inhumane living conditions by being deprived of enough food, water, medical care, as well as sleeping and toilet facilities, Thereby causing the detainees to suffer severe psychological and physical trauma.
Article 8 (2) (a) (IV) War crime of destruction and appropriation of property.
The perpetrator destroyed or appropriated certain property and the destruction or appropriation was not justified by military necessity. The destruction or appropriation was extensive and carried out wantonly on the property which is or was protected under one or more of the Geneva conventions of 1949. The perpetrator was aware of the factual conditions that established that protected status. The conduct took place in the context of and was associated with an international armed conflict.
Unjustifiable extensive destruction of property
One essential distinction between the war crime of the extensive destruction of property not justified by military necessity and carried out unlawfully and wantonly as a grave breach, one the one hand, and war crimes involving intentional attacks against non-military objects which are ‘other serious violations of laws and customs applicable in the international armed conflict which are not grave breaches, on the other, is extensive nature of war crimes in the former category. An isolated act would not suffice to constitute a grave breach .In post –WWII trials, setting fire to, pulling down, mutilating, or damaging property were held to be destruction of property.
Unjustifiable appropriation of property includes pillage and plunder. The concept of pillage in traditional sense implies an element of violence not necessarily present in offence of plunder which embraces all forms of unlawful appropriation of property in armed conflict for which individual criminal responsibility attaches in international law, including those acts traditionally described as ‘pillage’.The term ‘plunder’ is used interchangeably with the words ‘spoliation’ and ‘exploitation’. They all mean appropriation in which the owner is, deprived of his property involuntary and against his will by threats, intimidation, pressure or by using the position or power of the military occupant under circumstances indicating that the owner is induced to part with his property against his will. Spoliation is the widespread and the systematic act of dispossession and acquisition of property in violation of owner’s rights. Any form of deprivation of property, including theft or requisition is appropriation.
With regard to plunder trial chamber I of ICTY found the accused in jelisic guilty of plunder of private and public property in violation of laws or customs of war, as prescribed by article 3(e) of the ICTY statute, for his acts of robbing money, watches, jewellery and other detainees in makeshift detention facility in the former Yugoslavia in 1992, accompanied by threats to kill those who refuse to give him all his possessions. In the opinion of trial chamber, plunder is fraudulent or arbitrary appropriation of public or private property belonging to the enemy or adverse party committed in the context of an armed conflict and is connected thereto. It may be committed by isolated acts of soldier for their own private gains or to satisfy their personal greed, or by organised appropriation within the framework of systematic economic exploitation of occupied territory.
Article 8 (2) (a) (v) War crime of compelling service in hostile forces
The US military tribunal operating under control council law no.10 held in the Ministries case that while it is not illegal to recruit who volunteer to fight against their own country, ‘pressure or coercion to compel such person to enter into the armed service obviously violates international law..Therefore the term ‘compelling’ means using pressure or coercion to force someone to do something.
As for the mens rea, the US military tribunal held the accused in Milch case guilty of ‘unlawfully, wilfully, and knowingly’ guilty of participating in ‘plans and enterprises Involving the use of prisoners of war in war operations and work having a direct relation with war operations
The elements of crime adopted by the PCNICC to guide the ICC in the case of this war crime provide simply that the perpetrator must have coerced one or more persons, by act, or threat, to take part in military operations against that person’s own country or forces or otherwise serve in the forces of hostile power
Article 8 (2) (a) (vi) War crime of denying a fair trial
This provision is derived directly from article 130 of Geneva Convention of 1929 and article 147 of GC 1949.The rights of fair and regular trial enshrined in these instruments include: the right the accused to be judged by an independent and impartial court(article 84(2) of GC of 1929,the right to be promptly informed of the offences with which the accused is charged(article 104 of GC III and article 71(2) of GC IV),the right against collective penalty(article 87 of GC III, and article 33 of GC IV),the right to protection under the principles of legality(article 99(1) of GC III, and article 67(1) of GC IV) , the right not to be punished for more than once for the same act(article 86 of GC III and artivle117(3) of GC IV), the rights to be informed of his rights to appeal(article 106 of GC III, and article 73 0f GC IV) and the right not to be sentenced or executed without previous judgement pronounced by a regularly constituted court that affords all judicial guarantees recognised as indispensible by civilised peoples(common article 3 of four Geneva Conventions).
Article 8 (2) (a) (vii)-War crime of unlawful deportation or transfer or unlawful confinement
This offence is derived directly from Article 147 of GC IV.
Unlawful deportation or transfer
Article 45 of GC IV prescribes as unlawful the transfer of protected persons to a state not party to GC IV unless it is their country of residence to which they are to be repatriated after the cessation of hostilities. It is prohibited to transfer a protected person to any state where there may have a cause to fear persecution for his political opinions or religious beliefs. However, it is, permissible to extradite protected persons accused of offences against ordinary criminal law pursuant to extradition treaties concluded before the outbreak of hostilities.
In addition, Article 49 of GC IV prescribes as unlawful individual or mass ‘transfers, as well as deportations ‘of protected persons from occupied territory to the territory of the occupying power or to that of any other state, occupied or not, irrespective of their motive .However, the occupying power may undertake total or partial evacuation of the given area to another area within the occupied territory if necessitated by the security of the population or imperative military reasons. Above all, it is unlawful for the occupying power to deport or transfer the part of its own population into the territory it occupies
Under international humanitarian law, during armed conflict the individual freedom of civilians in the territory of a party to an armed conflict remains unimpaired, irrespective of whether they are nationals or aligned with an enemy party, subject to certain exceptions.Article 27(4) of GC IV permits ‘such measures of control and security as may be necessary as the result of war ’.The general exception laid down in article 5 of GC IV is that those definitely suspected of or engaged in activities hostile to the security of the state, spies or saboteurs, may be lawfully confined because of their activities that are prejudicial or hostile to the security of the state. As stipulated in article 42 of GC IV. The impoundment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.
Art. 42. ‘If any person, acting through the representatives of the Protecting Power, voluntarily demands internment, and if his situation renders this step necessary, he shall be impoundment by the Power in whose hands he may be’.
‘F’ an civilian is confined in violation of article 42 of GC IV, such confinement is unlawful. An initial lawful confinement becomes unlawful if it violates article 43 of GC IV, which provides
Art. 43. ‘Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the impoundment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit’.
This was the case concerning the detainees of celebeci camp. Even it might be argued that the initial confinement of a number of detainees was lawful, their continued confinement because they were not granted the procedural rights required by article 43 in the sense that no judicial body existed to review their detention. The ICTY emphasizes that respect of the procedural rights is the fundamental principle of GC IV.
Geneva Convention II of 1949 provides in article 36 that the religious, medical and hospital personnel of hospital ships and their crews shall be respected and protected; they may not be captured during the time they are in the service of the hospital ship, whether or not there are wounded and sick on board. The religious, medical and hospital personnel of hospital ships and their crew assigned to the medical or spiritual care of the persons designated in Articles 12 and 13 shall, if they fall into the hands of the enemy, be respected and protected; they may continue to carry out their duties as long as this is requisite for the care of the wounded and sick. As soon as the Commander-in-Chief, under whose authority they are, considers it practicable, afterwards be they shall be sent back,
The distinctive element adopted by the PCINCC to guide the ICC regarding the war crime of unlawful confinement as a grave breach simply stipulates that the perpetrator must confine or continue to confine one or more person to certain location.
The adversary may intern people or place them in assigned residence if it has ‘serious and legitimate reasons’ to think that they may seriously prejudice their security by means such as sabotage or espionage such activity must involve material, Direct harm to the adversary, and not just mere support to the party of the forces of the party with which the civilian is sided.The terms used by the court ‘serious and legitimate’ is very subjective and loose. The adversary can always use this term to their advantage and curtail the very basic humanitarian right of movement to the civilians’. The court could have gone a step further and laid down some parameters which can regulate the conduct and make sure that the innocent civilians are not deprived of their right of free movement without lawful justification. In celibeci while a number of civilians detained in celibeci prison camp were in the possession of the weapons at the time of their capture which could have been used or were in fact used against the forces of the detaining authority, the confinement of other civilians in could not be justified by any means since they could not have been ‘reasonably considered to pose any sufficiently serious danger to the detaining forces as to warrant their detention .No, doubt there cannot be any straight jacket formula and the facts will vary from case to a case but international courts can use more specific terms to define the crime of ‘unlawful confinement’
Article 8 (2) (a) (vii)-Taking of hostages
Hostages are innocent and non-combatants in the occupied territory who are unlawfully deprived of their liberty, often arbitrarily and sometimes under the threat of death. they are seized and held in custody as an anticipatory precaution against the enemy or in order to secure a promise from the enemy, such as using them as a screen against the enemy for the advancing or retreating force or killing them in order to terrorise and repress a resistance movement.their detention could be lawful in certain circumstances , notably when it is to protect civilians or when it is so required by reason of security. To find the accused guilty under this offence prosecution has to establish that at the relevant time of detention, the condemned act was committed with a view to obtaining a concession or advantage.
Article 6(b) of the Nuremberg charter specifies that ‘...ill treatment of civilian population of or in occupied territory....killing of hostages...’ shall be war crime. The Nuremberg That this provision is declaratory of the existing laws and the customs of the war as appeared in article 46 of the Hague Regulations(1907) ,which provided : ‘Family Honour and rights, the lives of the persons and private property, as well as religious practices and convictions must be respected
The US Military Tribunal at Nuremberg stated in Hostages case that it was:
‘concerned with the subject of reprisals and the detention of members of the civilian population for the purpose of using them as the victims of subsequent reprisal measures. The most common reason for holding them is for the general purpose of securing the good behaviour and obedience of the civil population in occupied territory. The taking of reprisals against the civilian population by killing members thereof in retaliation for hostile acts against the armed forces or military operations of the occupant seems to have been originated by Germany in modern times. It has been invoked by Germany in the Franco Prussian War, World War I, and in World War II. No other nation has resorted to the killing of members of the civilian population to secure peace and order insofar as our investigation has revealed’
In the High Command Case the US Military Tribunal at Nuremberg after referring to the Hostages case, stated that:
‘It was therein held that under certain very restrictive conditions and subject to certain rather extensive safeguards, hostages may be taken, and after a judicial finding of strict compliance with all preconditions and as a last desperate remedy hostages may even be sentenced to death. It was held further those similar drastic safeguards, restrictions, and judicial preconditions apply to so-called "reprisal prisoners." If so inhumane a measure as the killing of innocent persons for offenses of others, even when drastically safeguarded and limited, is ever permissible under any theory of international law, killing without full compliance with all requirements would be murder. If killing is not permissible under any
circumstances, then a killing with full compliance with all the mentioned prerequisites still would be murder’ The accused in the High command case were convicted on the count of killing of hostages because they had killed the hostages without fulfilling certain very restrictive conditions or certain rather extensive safeguards. The Hostages case did not any exculpatory pre conditions that would make killing of hostages not unlawful, and that in fact no such basis had ever been put forward, still less sanctioned in any of the earlier cases. Therefore it seems dubious that the law in the High command case has been applied correctly on this issue. Article 50 of the Hague Convention IV is applicable in this regard
Art. 50. ‘No general penalty, pecuniary or otherwise, shall be imposed upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible’
When read along with the Article 46 of the Hague Regulations(1907),which was held by the Nuremberg Tribunal as being the legal foundation for the proscription of the killing of Hostages, it is clear that the ‘rights’ of Innocent non-combatant civilians ‘must be respected’ and the mere act of taking of hostages without more would amount to the deprivation of the rights to freedom and liberty taken hostage on account of a ‘collective penalty be obtruded on them for the acts of other individuals. Thus taking of hostages is unlawful because it goes against:
a) Article 46 of the Hague Regulations(1907)
b) Article 50 of the Hague Convention (1907)
c) The general principles of International Customary law.
It should be noted that persons who are ‘hostages’ are not necessarily persons used as ‘Human Shields’ against military operations .the use of persons as comes under the offence of in human or cruel treatment or the one prohibited by article 8(2)(b)(xxxiii) of the ICC statute
Even after the International war crimes are defined but their application is subjected to various factors like gravity of offences and international Politics. At times, International war crimes are interpreted by the tribunal depending on the cases for ex. The Nuremberg trials did not accept the defence of superior order considering the gravity of the offence .Not only this it was also tainted as ‘victor’s justice’ by some international scholars. Therefore, in the international Arena it not just the law but international power play and the circumstances like the graveness of the offence which also plays a role in determining the guilt and the punishment. Also other lacuna that has already been pointed out is the looseness and ambiguity of the terms. The international law tribunals should be more specific while defining the crimes and the conditions under which if the act has been done absolves the accused of the liability for its commission.
Mere defining the International war crimes would not stop the commission of international war crimes what we need is a law abiding international community and respect for the international human rights. The notion of impunity should be uprooted by prosecuting those who are liable for the commission of international war crimes. At the end it should be the law of the International War Crimes that should prevail.
# 1Doc.PCNICC/1999/WGEC/INF.1 of 19 Feb 1999
# The Prosecutor v. Jean Paul Akayesu ,ICTR-96-4-T
# Prosecutor v.duskotadic,IT-94-A,ICTY
# Prosecutor v.duskotadic,IT-94-A,ICTY
# Prosecutor v. Dragon Nikolic, IT -94-2R61
# Article 33,Geneva Convention I,1949
# Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic,Esad Landzo,IT-96-21-T (hereinafter ‘Celibeci’)
2 Celebici para 437-9
# Celebici,para 442
# Prosecutor v. Furundzija, , IT-95-17/1-T
# Celebici,para 442,543,558
# Celebici,para 1066,1070
# Picet(ed.)commentary IV Geneva Conventions(ICRC,1958),Art.147,at 601
In re krauch and others(I.G Farben case) U.S military Tribunal at Nuremberg,29 July 1948
1. Prosecutor v.Goran Jelisic.IT-95-10,para.49
2 Prosecutor v.Goran Jelisic.IT-95-10,para50
3 In re Weizsaecker and others,US Milltary Tribunal at Nuremberg,14 Apr.1949
4 U.S.A. v. Erhard Milch US Milltary Tribunal at Nuremberg,16 Apr.1947
In re Weizsaecker and others,US Milltary Tribunal at Nuremberg,14 Apr.1949
2 U.S.A. v. Erhard Milch US Milltary Tribunal at Nuremberg,16 Apr.1947
# Celebici,paras 565-83
# Geneva Convention IV,1949
# Geneva Convention II,949
# Celebici,para 575
.# C.F lord Wright, ‘The killing of hostages as war Crime’(1948) 25 BYBIL
# Case of Prosecutor v. Tihomir Blaskic,(IT-95-14)
# Lord Wright(1948) 25 BYBIL
# The United States of America vs. Wilhelm List, et al., US Military Tribunal at Nuremberg 19 February 1948
# The United States of America vs. Wilhelm von Leeb, et al. US Military Tribunal at Nuremberg 28 October,1948
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