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Promoting Reconciliation and Accountability in Sri Lanka

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By Neville Ladduwahetty

From 2012, Reconciliation and Accountability have been the twin pillars of the series of Resolutions that emerged from the UN Human Rights Council in Geneva. Perhaps, the thinking of those who developed the formula of linking Reconciliation with Accountability was guided by the notion that an effective accountability process that holds some members of the security forces and the associated leaders accountable and punished would somehow ease the humiliation of defeat, and make the painful processes of healing and eventual reconciliation more tolerable.

In general, this notion presumes that retributive justice would promote reconciliation. The presumption of such an outcome is not an assured given because the possibility exists for the positions of the parties hoping to reconcile to harden to a point of defeating the intended objective of reconciliation if retributive processes and their outcomes are perceived as being vindictive. Thus, the contemplated accountability exercise has the potential to be counterproductive depending on the context in which it is conducted.

 

SRI LANKAN EXPERIENCE

In the case of Sri Lanka, this theory could not be put to the test because the retributive process could not even get started. The reason for this being that those who devised the process overextended themselves and wanted the accountability process to be so effective that they conceived only a judicial mechanism that involved foreign judges, prosecutor etc. would achieve the intended objectives. The fact that such an arrangement would involve amending existing Laws and provisions in the Constitution, to the extent of requiring a two-third approval by Parliament and approval by the People at a referendum, escaped their attention.

This was brought to the attention of the Human Rights Council in March 2019 by the then Foreign Minister Tilak Marapana.

“The Government of Sri Lanka at the highest political levels, has both publicly and in discussions with the present and former High Commissioner for Human Rights and other interlocutors, explained the constitutional and legal challenges that preclude it from including non-citizens in its judicial processes. It has been explained that if non-citizen judges are to be appointed in such a process, it will not be possible without an amendment to the Constitution by 2/3 of members of the Parliament voting in favour and also the approval of the people at a referendum”.

This gave the present Government legitimate grounds to withdraw from the co-sponsorship of UNHRC Resolution 30/1 in terms of Article 46 of the Vienna Convention 1969, which in essence states that a State may invalidate its consent to a Treaty if it violates a rule of its internal law of fundamental importance such as a Constitution of a sovereign State.

 

CURRENT SITUATION

Currently, the accountability process is at a stand-still because of the failure of the approach adopted. However, what exists is a collective body of material available in Reports prepared externally by the Panel of Experts appointed by the UN Secretary General and by the Office of the Human Rights Commission in Geneva together with internal Reports of Commissions of Inquiry appointed by the Government of Sri Lanka such as the Lessons Learnt and Reconciliation Commission (LLRC), and the Paranagama Commission that included International Experts.

This body of material has been reviewed from two distinct perspectives. Since the mandate to the LLRC was primarily to promote national unity and reconciliation among communities, its Report gives emphasis to Human Rights as reflected in paragraphs 5.2 and 5.3 cited below. On the other hand, the other Reports reflect a perspective that is based on International Humanitarian Law (IHL) as the applicable Law since the conflict had reached the threshold of a non-International Armed Conflict. Consequently, the material reviewed from a Human Rights perspective is bound to be different to a review based on IHL. Of the several reasons for this difference the most significant is that the LLRC viewed the conflict as between a State (GoSL) and a non-state actor (LTTE), thereby holding the State to a higher level of accountability than the LTTE, while under the perspective of IHL, responsibilities are shared equally as parties to an Armed Conflict. This makes the conclusions drawn from the respective perspectives different.

Paragraph 5.2 states: “Being a party to the following seven core international human rights instruments, Sri Lanka has given obligations under these Conventions through legislative measures, including the Constitution as well as executive and administrative measures”

Paragraph 5.3 states: “Sri Lanka therefore has constitutional and international obligations for the effective national implementation of these core conventions both during times of peace and war, and in the latter situation, together with applicable International Humanitarian Law…”.

It is therefore evident from the foregoing that the LLRC emphasis is on Human Rights with “applicable International Humanitarian Law’ during times of war. Had the LLRC recognized that it was a non-International Armed Conflict from the day the Cease Fire Agreement was signed as two parties recognized nationally and internationally to the conflict, the accepted applicable Law should have been International Humanitarian Law coupled with seriously derogated Human Rights during an Armed Conflict. This interpretation is reflected in the Sri Lankan Constitution and in the relevant Conventions during an Emergency as in the case of an Armed Conflict. The failure of the LLRC to recognize that it was a non-International Armed Conflict is the significant reason for its perspective to be different to the other Reports cited above.

 

LLRC’s INTERPRETATION of ACCOUNTABILITY

The material presented below are extracts from Chapter 9 of the LLRC Report titled “Summary of Principal Observations and Recommendations”. Since the two primary charges against the Government and the Security Forces are the excessive use of force and the inadequacies in the delivery of humanitarian aid, the two related sub-section from the LLRC Report presented below are: (1) “Measures to safeguard civilians and avoid civilian casualties” and (2) “Supply of humanitarian relief, including food and medicine to civilians in conflict zone”.

“Measures to safeguard…and No-Fire Zones”:

Paragraph 9.4: “In evaluating the Sri Lankan experience in the context of allegations of violations of IHL, the Commission is satisfied that the military strategy that was adopted to secure the LTTE held areas was one that was carefully conceived, in which the protection of the civilian population was given the highest priority…”

9.7 Having reached the above conclusion, it is also incumbent on the Commission to consider the question, while there is no deliberate targeting of civilians by the Security Forces, whether the action of the Security Forces of returning fire into the NFZs was excessive in the context of the Principle of Proportionality…”

COMMENT: The two fundamental principles of International Humanitarian Law are: Distinction and Proportionality. Without Distinction as to who is a combatant and who is a civilian to question whether the military response was proportionate or excessive cannot be ascertained. Since the LLRC Report admits that the LTTE shed their uniforms during the final states of the conflict, the question of distinguishing a civilian from a combatant is not possible, which means the principle of Proportionality cannot be applied. Furthermore, the comment that the Security Forces were “RETURNING fire to the NFZs” makes clear that it was the LTTE in the NFZs that initiated the firing. Despite the obvious presence of LTTE combatants, the LLRC Report makes no reference to them and refers to ALL as civilians.

Therefore, to categorize ALL in the NFZs as civilians and to question whether the return of fire was excessive in the context of the Principle of Proportionality that has no applicability in the particular circumstances, is seriously flawed.

In regard to “Hospitals/Makeshift Hospitals paragraph 9.12 (b) of the LLRC report states: “None of the persons making representations was able to state with certainty that they were in a position to definitely confirm that the shells which fell on the hospitals, originated exclusively from the side of the Sri Lankan Army or from the LTTE…Another ex-LTTE cadre…stated that the Puthumatthalan hospital was in fact accidentally shelled by the LTTE for which they had subsequently apologized”.

Supply of Humanitarian Relief

Paragraph 9.15: “The Commission notes that the supply of food to the civilians held by the LTTE up to early 2009 was at reasonably adequate levels…However, these adequacy levels appear to have declined during the months of February, March, April and the first half of May 2009…”

Paragraph 9.16: “It must be acknowledged that the maximum quantities of food supplies, that were possible…due to the collective efforts of the Government of Sri Lanka, in particular the GAs and the Security Forces as well as international agencies such as the ICRC and WFP, and other volunteers who had provided selfless service on the spot in the No Fire Zone”.

The impression conveyed in the above comments is that the Government of Sri Lanka was responsible for and obligated to supply humanitarian relief to All in the No Fire Zone. Since it was not possible to separate combatants from civilians, this meant supplying humanitarian aid including medical supplies to the LTTE and engaging with them in an Armed Conflict, simultaneously. Such a flawed expectation is a result of the confused perspective adopted by the Commission as to the role of the Government. How could the Government be a party to the conflict and be a provider of humanitarian aid both at the same time?

COMMENT: Had the LLRC accepted IHL as the applicable Law, they would not have held the Government of Sri Lanka accountable for the “decline” in the supply of relief. The reason for including the Government in the list of those responsible for the supply of humanitarian relief is because their understanding of the Government’s responsibilities was misplaced. The Commission fails to acknowledge that the Government as a party to the Armed Conflict, should not be expected to supply aid of any kind to the LTTE. Instead, what the Government was expected to do was ONLY to facilitate free passage of humanitarian aid to those affected by the Armed Conflict as per ICRC Rules 55 and 56 (Vol. 87, Number 857 March 2005).

Rule 55: “The parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse, distinction, subject to their right of control”

Rule 56: “The parties to the conflict must ensure the freedom of movement of authorized humanitarian relief personnel essential to the exercise of their functions. Only in the case of imperative necessity may their movements be temporarily restricted”.

PROPOSED STRATEGY

There are two basic approaches that Sri Lanka could take in presenting its case before the forthcoming sessions in Geneva. One approach is to plead its case by presenting all the available evidence from sources such as that of Lord Naseby, UN Reports, opinions of experts in the Paranagama Commission Report and any other sources challenging the alleged claims in the UNHRC Resolution 30/1. The other is to challenge the alleged violations on the basis of International Humanitarian Law, backed up with support material referred to above. Of these two approaches there is a greater likelihood of the latter approach being more acceptable because it has a more credible basis than the former.

CONCLUSION

When Sri Lanka placed on record at the March 2019 UNHRC sessions that it was withdrawing from the co-sponsorship of UNHRC Resolution 30/1, it undertook, among other undertakings, to appoint a Commission of Inquiry “to review the reports of previous Sri Lankan COIs which investigated alleged violations of Human Rights and International Humanitarian Law, to assess the status of implementation of their recommendations and to propose deliverable measures to implement them in keeping with the new Government’s policy”.

The plea to anyone engaged in fulfilling the commitment stated above is to declare at the very outset that its review of reports of previous COIs is based on the fact that the conflict in Sri Lanka that ended in May 2009 was a non-International Armed Conflict, as recognized by international law. Consequently, the review process should bear in mind that the applicable Law is International Humanitarian Law together with derogated Human Rights Laws as reflected in International Covenants and in Sri Lanka’s Constitution during an Emergency. Therefore, the alleged violations presented in these Reports should be assessed in the context of these Laws, backed up with support material such from UN Reports, evidence presented by Lord Naseby, opinions of experts in the Paranagama Commission Report, and by the ICRC, etc.. Since the Additional Protocol II of 1977 is accepted as part of Customary Law and the fact that it embodies all recognized provisions of non-International Armed Conflict, the provisions of the Protocol should guide the review process of alleged violations committed collectively or individually.

The review process should also identify which recommendations in the Commission of Inquiry Reports relating to Reconciliation are deliverable in keeping with Government policy. In this regard one measure that would make a significant difference to Reconciliation is to demand tangible outcomes from the Office of Missing Persons, bearing in mind that their work could be constrained by the non-cooperation of Member States if they fail to disclose the identities of persons missing from Sri Lanka and who are now living in their countries under altered identities.

The forthcoming sessions in Geneva would be a defining moment for Sri Lanka in its relations with the UNHRC. Therefore, the Government should conclude its review process well in time, in order to enable it to canvas support among the members of the UN Human Rights Council on the basis of the legitimacy of the approach taken and bring closure to Accountability. At the same time the UN Human Rights Council should permit Sri Lanka the time and space to address Reconciliation through processes that each country has to fashion because its uniqueness is special to every country, and no country or International Agency has a universal formula to bring about Reconciliation among communities in a country.

 

Neville Ladduwahetty

November 15, 2020.

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31st night…Down Under

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The NYE scene at the Grand Reception Centre, in Melbourne

Despite the COVID-19 restrictions, the Voluntary Outreach Club (VOC) in Victoria, Australia, was able to hold a successful New Year’s Eve celebration, at The Grand Reception Centre, in Cathies Lane, Wantirna South.

In a venue that comfortably holds 800, the 200 guests (Covid restrictions), spanning three generations, had plenty of room to move around and dance to the array of fabulous music provided by the four bands – Replay 6, Ebony, Cloud 9 with Sonali, Redemption and All About That Brass. 

The drinks provided, they say, oiled the rusty feet of the guests, who were able to finally dress up and attend such an event after nine months of lockdown and restrictions. With plenty of room for dancing, the guests had a thoroughly enjoyable time. 

According to an insider, the sustenance of an antipasto platter, eastern and western smorgasbord, and the midnight milk rice and katta sambol, were simply delicious, not forgetting the fantastic service provided by Jude de Silva, AJ Senewiratne and The Grand staff.

The icing on the cake, I’m told, was the hugely generous sponsorship of the bands by Bert Ekenaike. This gesture boosted the coffers of the VOC, which helps 80 beneficiaries, in Sri Lanka, comprising singles and couples, by sending Rs. 3,000 to Rs. 3,500, per month, to each of these beneficiaries, and augmenting this sum, twice a year, in July and December, with a bonus of the same amounts.

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Fall armyworm:

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Strategies for effective management

by Prof. Rohan Rajapakse

Emeritus Professor of Entomology University of Ruhuna and former Executive Director Sri Lanka Council of Agriculture Research Policy

Fall armyworm Spodoptera frugiperda (Lepidoptera; Noctuidae), a quarantine pest, has been identified as a very destructive insect pest of Maize/Corn. This insect originated in Americas and invaded the African region in 2016 and was detected in India the following year and perhaps would have naturally migrated to Sri Lanka last year from India. Now, it is reported that FAW is present in all districts of Sri Lanka except Nuwara-Eliya and Jaffna. In winter in the USA the pest is found in Texas and Florida and subsequent summer when it gets warmed up, the pest migrates up to the Canadian border. The corn belt of China is also at a risk due to its migratory habit and the cost to Africa, due to this invasion, will exceed $ 6 billion. Maize is a staple food crop in Africa and millions depends on it for food. Hence in Africa and now in Asia it is a global food security issue for millions of people that could be at a risk if FAW is not controlled. The adult moth migrates very fast almost 100 km every night and nearly 500 km, before laying 1,500 eggs on average. The entire life cycle lasts 30 days in tropical climate. There are six larval instars and mostly the destruction is caused by the last three instars and the growing moth pupates in the soil for 10-12 days and the nocturnal adults lay eggs on leaves for about 10 days The pest thrives on about 80 host plants but the most preferable host is Corn/Maize. In Sri Lanka the preferred hosts includes Kurakkan and Sugarcane in addition to Maize. The symptoms of damage- scrapping of leaves, pin holes, small to medium elongated holes. Loss of top portion of leaves fecal pellets in leaf whorl which are easily recognizable. The Comb is also attacked in later stages with a heavy infestation, but after removing the FAW affected portion of the comb the remaining portion is still suitable for consumption and there is no fear of any toxicity. There are two morphologically identical strains––maize strain that feeds on maize and sorghum, and rice strain that feeds on rice and pasture grasses. However, in Sri Lanka only the maize strain has been detected so far. FAW thrives in a climate where drought is followed by heavy rains on a similar way we have experienced last year.

Although new agricultural insect pests are found in Sri Lanka, from time to time a number of factors make FAW unique (FAO Publication 2018)

1

FAW consumes many different crops 2 FAW spreads quickly across large geographical areas 3.FAW can persists throughout the year. Therefore Sri Lanka needs to develop a coordinated evidence based effort to scout FAW for farming communities and effective monitoring by the research staff

 

Management

Since the pest has already arrived in Sri Lanka, the Government/ Ministry of Agriculture should formulate short, mid and long term strategies for its effective management with all stakeholders. Also it has to be clear that a single strategy ex pesticides will not help in effective control but a proper combination of tactics, such as integrated pest management should be employed in the long term. In the short term, the recommended pesticides by the Department of Agriculture should be employed along with cultural and sanitary control strategies. These strategies have now been formulated and what is required to enlighten the farmers and people by utilizing the trained staff. The country should be placed on a war footing and an emergency should be declared in the affected areas to coordinate the control strategies. The integrated control tactics, such as cultural control, should be integrated with pesticides based on the recommendation of the research staff. The residues should be destroyed after harvest and avoid late planting and staggered planting. The Ministry of Agriculture should create awareness among the farmers and train the farmers on early detection of egg masses found on leaves and destroy them by hand. The pesticides for FAW control is recommended by the Department of Agriculture (Please contact Registrar of Pesticides of the Department of Agriculture for the recommended list of Pesticides) and they have to make it available at subsidized rates or given free with technical information considering the emergency. When the larvae are small early detection and proper timing of pesticides are critical for elimination of the pest. With this outbreak some farmers and the private sector is engaged using highly hazardous pesticides which should be avoided to make way for sustainable alternatives. The Department Entomologists should train the farmers for early detection of egg masses when present on 5% of the plants and when 25% of the plants show damage symptoms and live larvae are present on war footing. The economic threshold has been calculated as 2-3 live larvae per plant and the control strategies should commence as soon as this threshold is detected by visual observation. The majority of development officers, agriculture and science graduates working in Divisional Secretariats, are already trained on pest control and their participation on training the farmers for early detection and pesticide selection and application warrants the strategy. Some of the recommended pesticides are follows: Chlorantraniliprole 200g/1SC: Trade name Corogen, Emamectin benzoate 5%SG: Trade name Proclaim,, Flubendiamide 24% WG : Trade name Belt. The Principle Entomologist of the Dry Zone Research Station of the Department of Agriculture ( Mrs KNC Gunawardena) has prepared an effective online presentation on FAW control and this has to be shared by all. The African country Ghana has declared a state of emergency in response to this invasion as Maize is a staple crop which should be followed by us in Sri Lanka.

The long term strategies include early detection. Stopping its spread and initiation of a long term research programme to identify tolerant varieties and granting permission to import such varieties as seeds. The country should ear mark on a Biological control strategy by breeding and releasing FAW parasitoids regularly. In USA larval parasitoids such as Apanteles marginiventris, Chelonus insularis and Microplitis manilae have contributed to keep the pest population down along with egg parasitoids Trichrogramma spp and a similar program should be initiated in the affected districts. Finally the best option is to establish a task force with the involvement of entomologists, extension personnel along with the administrators and scientists working in the universities to ensure the country are safe with regards to food security

 

 

The author has read for a PhD at University of Florida Gainesville in the USA in 1985 and his PhD thesis exclusively deals on Fall armyworm parasitoids and its ecology

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President’s decision on Colombo Port in national interest

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by Jehan Perera

President Gotabaya Rajapaksa has announced that the government will be entering into an agreement with the Adani Group, based in India, to offer them 49 percent of the shares in a joint venture company. This joint venture will include Japanese government financing and will manage one of the terminals in the Colombo port. The entry of Adani Group, into the Colombo port, has been opposed by a wide coalition of organisations, ranging from port workers, and left political parties, to nationalists and civil society groups. These groups have little in common with each other but on this particular issue they have made common cause and even held joint protests together. The main thrust of their objections is that control over the East Terminal of the Colombo port will pass into foreign hands and result in an erosion of Sri Lankan sovereignty.

The cause for alarm, among the protesting groups, may be fueled by the observation that one by one, the ports of Sri Lanka are being utilized by foreign powers. In particular, China has entered into Sri Lanka in a big way, obtaining a 99-year lease in the Hambantota port that it constructed. The Hambantota port, in its early period, showed it was economically unviable in the absence of Chinese cooperation. The burden of debt repayment induced the previous government to enter into this agreement which may become unfavorable in terms of national sovereignty. There were protests at the time of the signing of that lease agreement, too, though not as effective as the present protests regarding the change of management in the Colombo port, which is led by the very forces that helped to bring the present government into power.

In addition to the Hambantota port, control over the South Terminal in the Colombo port, and a section of the harbour, has been given to China through one of its companies on a 35-year lease. In both cases, large Chinese investments have helped to upgrade Sri Lanka’s capacity to attract international shipping lines to make use of the port facilities. The Hambantota port, in particular, could benefit enormously from Chinese ships that traverse the Indian Ocean, the Middle East and Africa. Instead of making refuelling stops elsewhere along the way, such as Singapore, they could now come to Hambantota. However, with these investments would also come a Chinese presence that could cause concerns among international actors that have geopolitics in mind. It may be that these concerns are finding expression in the opposition to the Indian entry into the Colombo port.

 

RATIONAL ANALYSIS

It will not only be Sri Lankans who are concerned about the Chinese presence in the country’s ports. As Sri Lanka’s nearest neighbour, India, too, would have concerns, which are mirrored by other international powers, such as Japan. It might be remembered that when Japan’s prime minister visited Sri Lanka, in 2014, there was a diplomatic furor that a Chinese submarine entered the Colombo port, unannounced, even to the Sri Lankan government, and docked there. With its excellent relations with China, that go back to the 1950s, when the two countries signed a barter agreement, exchanging rice for rubber, most Sri Lankans would tend to see such Chinese actions in a benign light. In recent years, China has emerged as Sri Lanka’s largest donor and its assistance is much appreciated. However, India’s relations with China are more complex.

The two countries have massive trade links, but they have also gone to war with each other due to territorial disputes. Even at the present time Indian and Chinese troops are in a stand-off on their disputed Himalayan border. In this context, India would be concerned that the Chinese presence in Sri Lankan ports could eventually take the form of an overall strategy to encircle it and use this leverage to India’s disadvantage. Sri Lanka’s location at the bottom of the Asian continent gives it a strategic importance in the Indian Ocean that goes beyond any possible India-China rivalry. The recent visit of US Secretary of State to Sri Lanka included an acerbic exchange of words between the US and Chinese representatives on that occasion and an open call to Sri Lanka to take sides, or not to take sides. As a small actor in itself, Sri Lanka would have no interest in getting involved in international geopolitics and has a longstanding policy of non-alignment and friendship with all.

More than anyone else, President Gotabaya Rajapaksa would be aware of these geopolitical issues. As Defence Secretary, during the years of war with the LTTE, he was a key member of the government team that obtained wide ranging international support for prosecuting the war. Today, the President’s key advisers include those with military backgrounds who have special expertise in geopolitical analysis and who have spent time in leading military academies in different parts of the world, including the US, China and India. This contrasts with the more parochial thinking of political, nationalist and even civil society groups who have come out in opposition to the agreement that the government has entered into with the Indian company to manage the Eastern Terminal of the Colombo port.

 

GEOPOLITICAL IMPERATIVE

President Rajapaksa was elected to the presidency in the context of the security debacle of the Easter Sunday suicide bomb attacks and with the expectation that he would provide clear-cut leadership in protecting the country’s national security without permitting partisan interests from becoming obstacles. In his meeting with the representatives of the trade unions, opposing the handing of management of the Eastern Terminal to foreign hands, the President is reported to have said that geopolitics had also to be taken into account. As many as 23 trade unions, representing the Ports Authority, the National Organisations collective, and a number of civil organizations, have joined the formation of a new national movement named the ‘Movement to protect the East Container Terminal’.

One of those political representatives at the meeting, leader of the Frontline Socialist Party (FSP), Pubudu Jayagoda, is reported to have said, “When trade unions met President Gotabaya Rajapaksa on Wednesday (13), he told them about the broad geopolitical factors in play. This is reminiscent when the unions met former Prime Minister Ranil Wickremesinghe a few years back. The unions told Wickremesinghe what they told Rajapaksa––the ECT could be operated by Sri Lanka in a profitable manner. Wickremesinghe told the union representatives, ‘You are talking about the port, I am talking about geopolitics’.” However, former Prime Minister Wickremesinghe may not have had the necessary political power to ensure that his vision prevailed and failed to ensure the implementation of the agreement.

Entering into the agreement with the Indian company will serve Sri Lanka’s national interests in several ways. By ensuring that India is given a presence in Sri Lanka’s most important port, it will reassure our closest neighbour, as well as Japan, which has been Sri Lanka’s most consistent international donor, that our national security interests and theirs are not in opposition to each other. Second, it takes cognizance of the reality that about two-thirds of the Colombo port’s shipping is due to transshipment with India, and thereby ensures that this profitable business continues. Third, it will give Sri Lanka more leverage to negotiate with India regarding key concerns, which includes Indian support to Sri Lanka at international forums and in providing guarantees for the unity of the country in the face of possible future threats and the need to ensure devolution of power to satisfy ethnic minority aspirations.

 

 

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