The Use of Force against Terrorism: Does International Law fall Victim

Post 9/11 'utilization of power' in global law and a great part of the understandings towards it has experienced awesome development. The worldwide world is at the pivot of the history the same number of the old administration falls and new dangers rise. The difficulties this have made for the customary framework have been unparalleled. 

The shocking demonstration of besieging the twin towers of the World Trade Center and the consequence reaction made by the individual nations and global group everywhere had, numerous reporters felt, left the worldwide law astounded. This has been reflected by failure of the global law in classifying the occasions of 9/11 inside its structure furthermore in deciding the lawfulness of the move made by the coalition powers as 'war against fear' in Afghanistan and past, after the two Security Council Resolutions. (i) 

The occasion itself has prompted the development of numerous new inquiries in the universal law. Whether worldwide law at present gives apparatus to bargain the demonstration of terrorism of the size saw by 9/11? How far an individual State is legitimized in utilizing power against another State to smother terrorism? Whether the demonstration of dread, particularly by non-state performing artists, might be termed as 'equipped assault' compliant with Article 51? Whether the privilege of self-protection douses once the "assault" happened or does it keep on existing to keep a prospect 'danger'? Who figures out if the possibility of such dangers as specified above exist? The present exploration paper looks to address the above amongst numerous different inquiries other than dissecting specific circumstance in some particular connection. 

The topic territory of this article like some other subjects in worldwide law may have been managed by a wide range of writers. Additionally such a wide topic as present is entirely equipped for conceding numerous things. Subsequently certain provisos are all together with respect to significance and extent of this examination paper. 

Post 9/11 has produced a significant part of the writing on this subject to such an extent that any dialog on this may appear as redundant. However, a portion of the late happenings around the globe have resuscitated the enthusiasm of researchers and experts of worldwide law into this territory. The killings of US conceived Yemeni priest and Al-Qaeda pioneer Al-Alwaqi[ii] and author pioneer of Islamist activist association Al-Qaeda Osama Bin Laden[iii] on outside soils have broad outcomes for this territory of worldwide law. Regardless, the issues in level headed discussion since have declined to subside making this range still a ripe ground for all concerned. At last it is important to specify that worldwide activity to smother terrorism interfaces with numerous different territories of universal law including state obligation, global philanthropic law, human rights, universal criminal law among others. The extent of present examination paper however is just confined to critique on universal standards of utilization of power to smother terrorism and evaluation of contemporary circumstances. 

The General Principles Underlying Use of Force 

The utilization of dread as a way to accomplish political closures is an old phenomenon.[iv] However, in late decades the circumstance has turned out to be more extraordinary and complex. As a rule non-state on-screen characters focus on another State, while in different cases terrorist focuses on the advantages of the casualty State in uninvolved third States to pressurize the legislature of the casualty State. Still in others, a portion of the States effectively help and abet the on-screen characters to do assaults in different States. This has made various issues under the steady gaze of worldwide law, particularly where the third State is included. The principal test is definitional itself. Besides, whether there are concurred measures for avoidance and discipline of terrorist acts. Likewise, does global law give satisfactory components to activity against state that guides and abets terrorism? 

Clearly individuals from worldwide group must take after the standards of global law in their dealings with universal terrorism, especially where the power and the regional respectability of third State is included. Most likely solid reaction is required to smother universal terrorism. In any case, any measures developed must be in this way, that does not cheapen the built up standards of universal law. It is the circumstances, for example, these which test the confidence of universal group in worldwide law; generally allurement may run high with respect to intense country to make a move undermining the reasons and destinations of the United Nations system[v]. It is along these lines adept here to review the developing standards of universal law overseeing utilization of power in circumstances including global terrorism. 

A. Forbiddance of Use of Force 

The present principles of worldwide law, especially the 'law of war' were conceived consequence of World War II to keep the revulsions and obliterations of the scale saw amid that period. The regulating decide that restricts the utilization of power in universal relations was conceived of comparable longing under the UN Charter System. The prohibition on utilization of power is set down in Article 2(4) of the UN Charter which requires that States 'hold back in their universal relations from the danger or utilization of power against the regional respectability or political freedom of any state, or in whatever other way conflicting with the Purposes of the United Nations.' 

The restriction on utilization of power was a guideline of pre contract standard universal law though established in ideas, for example, simply war and legal backlash. The Charter principle, nonetheless, seriously limited the circumstances under which utilization of power might be considered legal.[vi] Article 2(4) now put a general denial on utilization of power and extends this disallowance past war to incorporate a wide range of one-sided use or risk of power. Indeed, a significant number of researchers trait the guideline contained in Article 2(4) to have achieved a jus cogens character.[vii] 

The Charter takes into account two special cases to the general denial on utilization of power: (i) individual and aggregate self-protection under Article 51 and (ii) implementation measures approved by the Security Council because of 'any danger to the peace, break of the peace or demonstration of hostility' under section VII [viii]. The sanction is genuinely open-finished with respect to the Security Council's energy to approve power 'to keep up or reestablish global peace and security'. Interestingly, the UN Charter is somewhat prohibitive concerning the utilization of power by states. It is here that the debate emerges in regards to legitimacy of utilization of power by individual states to stifle global terrorism, whereby such activity drives casualty State to the region of another State. 

B. Self-Preservation in International Law 

Self-Preservation, as is apparent from the term, is a sort of self improvement and is accessible to State in case of illicit utilization of power yet not infringing upon worldwide commitments of the State depending on self-protection. Hence, self-protection, under current worldwide law, prohibits demonstrations of striking back furthermore demonstrations of prevention against conceivable future assault. [ix] 

Article 51 of the UN Charter determines the conditions under which singular states may depend on power. There has been impressive debate with regards to the exact degree of the privilege to self-preservation, particularly as to what is implied by an 'equipped assault'. This inquiry accept specific centrality to the present examination paper in order to decide lawfulness of utilization of power against terrorist upheld by another State. By and large talking, by righteousness of Article 2(4), it can be characterized as the utilization of power against a state's regional honesty and political freedom, its careful degree is still in debate. To represent, in its Nicaragua judgment[x], the ICJ observed that sending furnished groups or soldiers of fortune into the domain of another state constituted an outfitted assault, while supply of arms or logistical backing without anyone else did not add up to an equipped assault. In this way, the ICJ left the inquiry genuinely open finished, whether the privilege of self-preservation reaches out to assaults by non-state performers or whether its application is restricted to reaction to assaults by the States. 

Alongside the extent of 'outfitted assault', another argumentative issue relates to whether a privilege to expectant or pre-emptive self-protection exists, whereby a genuine furnished assault has still not happened but rather threatened.[xi] 

The prohibitive perspective is that article 51, read in conjunction with the general restriction of the utilization of power set out in Article 2(4) limits the conjuring of such a privilege to situations where a genuine outfitted assault has really happened and not where such assault being threatened.[xii] This perspective discovers support from the way that article 51, rather than article 2(4) forgets any reference to the 'risk'. The liberal perspective keeps up that Article 51 ought not be deciphered as barring the privilege to expectant self-protection on account of a fast approaching peril of assault. This perspective rejects the prohibitive elucidation of the word 'if', as it is utilized in Article 51, as signifying 'if and just if'.[xiii] These researchers bring up that by qualifying the privilege of self-preservation as 'intrinsic', article 51 demonstrates the presence of a privilege of self-protection in pre-sanction standard worldwide law, as per which preventive measures are allowed. [xiv] 

C. States' Practice 

The ICJ itself in Nicargua Case[xv] communicated no perspective on the issue of legality of a reaction to an unavoidable risk of equipped attack.[xvi] But the issue with the universal framework is that in dominant part of the cases it leaves such determination to be made by the States themselves. 

Making legitimate guidelines in global law is one thing; thus it is significant to perceive how elucidation of expectant self-preservation played out in States' practice. The State rehearse on this issue, best case scenario might be termed as equivocal. The besieging of Iranian atomic locales to anticipate forthcoming atomic assault on Israeli regions give a run of the mill case to dissecting this issue. While Security Council (SC) collectively denounced Israeli activity and found the military assault by Israel in clear infringement of the Charter of the United Nations and the standards of worldwide behavior, the Permanent and different individuals from the Council did as such on various grounds. A portion of the non-lasting Representatives [xvii] took prohibitive position keeping right to self-protection to situations where there is a real 'outfitted assault', Britain legitimized its voting on the ground of Israeli activity neglecting to meet the criteria advanced in Caroline Case [xviii], i.e. nonappearance of moment and overpowering circumstance requiring self-preservation activity. Even more, US judgment of Israeli activity depended on altogether diverse plane. It held Israeli activity untenable in view of its inability to debilitate serene means for the determination of this debate. 

The above positions offered by various States manage the cost of no protected perspective with respect to passability or generally of marks to avert foreseen assault where Nation States are included. Still less the current position clears up in regards to the self-preservation right against non-state on-screen characters in the event of expected assaults. Be that as it may, one thing might be said with sureness that even in the event of expectant self-preservation, the criteria of need and proportionality manage the perch. 

The Wind of Change: Present Regime 

As said before that utilization of power all things considered, under article 2(4), against non-state on-screen characters is not restricted as such, but rather states are under commitment not to utilize power in their 'global relations'. As a result, hostile to terrorist power could be utilized the length of it didn't concern the extent of states' universal relations. 

This obviously exhibits utilization of power against terrorists situated in another state plainly comes surprisingly close to article 2(4). This, thus, clearly implied that states on whose domains such assaults are completed would be left with next to no alternatives and compelled to tolerate the brunt noiselessly. Be that as it may, Charter framework gives an unmistakable exemption to disallowance of utilization of power under article 2(4). Part VII accommodates aggregate authorization measures approved by Security Council, in the event that it esteems that a circumstance exists as a danger to, or break of, the peace in the feeling of Article 39 of the Charter. It should be said however that before September 11, for no situation the Council considered a particular terrorist exercises, not to mention terrorism all in all as risk to global peace and security. 

The 11 September occasions did not proclaim any change in standardizing rules. On the substance of it, the Charter administration is the same. Articles 2(4), 42&43, and 51 UNC still apply. Be that as it may, the Security Council has re-created itself and has taken a few measures since September 11 to manage terrorism.[xix] Outside Security Council system, nations like India exhibited a proposition to the United Nations General Assembly for an exhaustive tradition against worldwide terrorism, which has been unsuccessful because of the inability to concede to the extent of the Convention. 

A. The Role of security Council and Its Limitations 

As is understood, in the most recent two decades the Security Council has affirmed its part in the universal framework opposite terrorism. Truth be told after September 11, it has embraced more number of Resolutions on against terrorism measures than, maybe on whatever other subjects. 

In its 1368 (2001) Resolution, the Council made first ever reference to terrorism, and noticed that it was 'resolved to battle by all methods dangers to universal peace and security brought on by terrorist assault' and respected such assaults 'like any demonstration of worldwide terrorism, as a risk to global peace and security'. This Resolution, it might be noted, was embraced not under Chapter VII, and in this manner couldn't approve aggregate utilization of power, all things considered was a significant distinct advantage. 

Conversely, the Council in its Resolution 1373 (2001) particularly noticed that it is acting under Chapter VII of the Charter and took particular non-military measures under article 41 of the Charter. Specifically, it forced on all States certain commitments particularly chose from those forced by the 1999 Convention for the Suppression of the Financing of Terrorism, which around then was not yet in power. In so acting, the Council rendered certain simply bargain rules official on all Member States of the United Nations and in this manner accepted the part of a genuine universal administrator. [xx] 

There are two angles to these resolutions. To start with, these two resolutions make it copiously clear that demonstrations of terrorism can add up to dangers to peace in the feeling of Article 39 of the Charter.[xxi] In truth the Council in its Resolution 1566 (2004) emphasized this rule it 'denounces in the most grounded terms all demonstrations of terrorism regardless of their inspiration, at whatever point and by whomsoever submitted, as a standout amongst the most genuine dangers to peace and security'. Furthermore, also, it has committed upon every one of the States to take non-military measures as indicated above with the end goal of battle against terrorism. 

In making these resolutions however the Security Council attested its part in managing terrorism yet in the meantime experienced itself a constraint. Once the Council has qualified a demonstration of terrorism as a risk to the peace, the way towards sanctions under articles 41 and 42 of the Charter is on a basic level open. However the Council has avoided applying article 42. This is an unmistakable sign that the Council has not approved utilization of hostile to terrorist power as military approvals. 

Truth be told, the US itself, after 9/11, did not fall back on Chapter VII approval to utilize power. Maybe, it was apparent to it that that general wordings of Resolution 1368 (2001) might be summoned by numerous different nations later on. Rather it depended on that part wherein the Security Council perceived "the characteristic right of individual or aggregate self-preservation as per the Charter". Here the expression 'as per the Charter' is of specific significance. Can it be said that Security Council Resolution 1368 allowed a more extensive right to utilize constrain singularly in activity of self-protection? 

B. Right to Act Unilaterally 

The key advancements amid the most recent two decades influence the principles representing the one-sided utilization of power against terrorists. Amid period going before 1990's, States have utilized power against terrorist dangers yet scantily. In any case, the late decade has seen stamped expanded in propensity to utilize constrain unitarily against terrorists on outside soil. The circumstances in which power has been utilized change fundamentally, however have only been clarified as activities in self-protection. 

The most clear case is the US activity of self-protection in light of the 9/11 assaults. The US reaction is not a disengaged occasion. Numerous States have responded against terrorist strikes by utilizing power, including intrusion of remote regions from which the terrorists were working. The most unmistakable case is Israel. Israel has over and over asserted its entitlement to act in self-protection against terrorism radiating from outside regions. In the late spring of 2006, after rocket assaults against it by the Lebanon based Hezbollah, Israel reacted with an intrusion of Lebanon.[xxii] More as of late in March 2008, Colombian strengths moved into Ecuadorian domain in quest for revolutionaries having a place with FARC. [xxiii] 

The late practices by the States depicted above have put strains on past comprehension of circumstances which trigger activity of self-protection right. The accompanying segments dissect how the late practices by the States have endeavored to get prescriptive changes in key components of self-preservation administration in connection to hostile to terrorism measures. 

(i) Rule of Attribution 

A significant part of the above examination fixated on the actuality whether singular States can guarantee plan of action to self-preservation under article 51 in case of an assault by the terrorist by seeking after it on remote domains. One of the numerous inquiries emerges in this appreciation is the determination of state inclusion in the assault. The ICJ in the Nicaragua Case[xxiv] has set out the 'successful control' test of attribution.[xxv] The test basically ascribes obligation to a State for demonstrations of private people on the premise of the accompanying gauges: (a) whether the state has issued guidelines to those persons; (b) whether the state has guided the persons to accomplish something; or (c) whether the state has practiced control over those persons. 

Be that as it may, a hefty portion of the observers have recommended that this principle stands altered in the light of late State hones wherein obligation is credited to the States for its complicity in the exercises of terrorists in light of its region – either as a result of its backing underneath the level of heading and control or on the grounds that it has given a place of refuge to terrorists. It aligns the new approach with perspectives communicated in Judge Jennings' contradiction, outstandingly his supplication for more adaptable guidelines of attribution.[xxvi] The adaptable methodology as recommended, however seized by the US and Israel-since it appeared to be helpful to them by then is yet to be set up immovably in global law. Till that happens, utilizing the thought of complicity, it appears, might be depicted as hostility. 

(ii) Threshold Requirement 

The second component of the self-preservation administration is edge prerequisite. The law created by universal courts appears to have made qualification between 'less grave structure' and 'more grave structure' of utilization of power. In the Oil Platforms case[xxvii], it explicitly certified such refinement. This suggests state falling back on self-preservation needs to fulfill that assault did against it is of nature that will qualify as expansive scale assault. Be that as it may, the world court is having doubt on this. In DRC-Uganda Case [xxviii], seeing that it held that self-preservation could be coordinated just against 'vast scale assaults, it exited open the inquiry whether states could react to 'assaults by unpredictable powers'. 

Indeed, even a review of state practices propose that States have never surrendered their rights to react if there should be an occurrence of ruptures which without anyone else's input may not qualify as 'grave type of assault' as implied in Nicaragua case. The developing patterns propose that states will move past limit prerequisite recommended in Nicaragua judgment for "gathering of occasions" precept. This convention recommends that as for the edge necessity, it must be evaluated whether a progression of minor episodes, taken together, can be said to achieve the limit of a furnished assault. [xxix] 

It is to be noticed that the teaching was tremendously talked about by the prosecutors in the Cameroon-Nigeria, DRC-Uganda [xxx], and Oil Platforms [xxxi] cases, however the Courts in the separate cases did not affirm on the matter. This teaching offers solace to the individuals who have since a long time ago censured the hole between article 2(4) and artice 51, yet at the same time has not yet discovered firm place in universal law. On the other hand, Judge Simma in Oil Platform Case favored "proportionate protection measures" set up of 'aggregate teaching' to fill such crevice. [xxxii] 

The above contentions, in any case, are not definitive that limit prerequisite elucidated in Nicaragua case is no more hold great. This is for the most part for two substantial reasons. One, that ICJ yet to give a legitimate judgment on the matter holding 'aggregate occasions' or 'proportionate protection' teachings substantial in connection of article 51, and two, that self-preservation right is cautious in nature and can't stretch out to interminability sitting tight for occasions to gather. 

(iii) Defensive Nature of Right 

Banters as of late have focused on conditions under which states can summon self-protection right. Be that as it may, the extent of the right itself is experiencing emotional changes. Specifically, late practice appears to have to a great extent relinquished the utilitarian comprehension of self-preservation as a defensive method for 'repulsing outfitted assaults'. [xxxiii] This thusly raises questions not just about the time furthest reaches of self-protection, additionally about the characteristically guarded character of the privilege. 

The customary comprehension of self-preservation right is that reaction to utilization of power must have quickness necessity. Indeed, even one acknowledges the more extensive thought of 'furnished assault', yet reaction by the influenced state must be quick and cautious in character. Be that as it may, the late state rehearse, especially Operation Enduring Freedom dispatched by US after 9/11, does not fulfill above necessity. The Operation was at first taking into account a wide and faultless perusing of Article 51 of the Charter. Yet, it has now transformed into a self-propagating military crusade serving a scope of destinations. It is presented that the battle has obviously overstretched the limits of even the broadest comprehension of self-protection. The late killings of Yemeni pioneer Al-Alwaqi and Al-Qaeda organizer Osama-Bin-Laden, taking into account changeless condition of self-preservation does not hold great in universal law. One can dare to dream that this remaining parts a secluded occasion and not imitated by different countries, especially by the individuals who have veto power in the Security Council. 

A Way Forward 

An impartial perusing of the late state rehearses [xxxiv] and Security Council Resolutions[xxxv] propose that guidelines on utilization of power with regards to terrorism are very nearly change. On the off chance that one acknowledges that these standards required some re-modification, then they should change for better. In any case, the test before global group lies in making the guidelines all around pertinent and including a touch of sureness it. The more prompt test before global legal counselors and political pioneers is to oppose the inclination to offer avocation for utilization of power against terrorism in self-preservation taking into account one-sided risk observation. 

Presently the greater inquiry emerges what ought to be the procedure of worldwide group in managing universal terrorism wherein a portion of the states are discovered supporting and abetting terrorism. At the beginning it must be specified that the legitimacy of existing legitimate system of self-protection must be reaffirmed. It would be counter-profitable to a far reaching teaching of 'aggregation of occasions' as proposed by numerous pundits and advocated by states. This is not to say that the current structure is great. The utilization of the choice of the ICJ in the Nicaragua case must be reevaluated in instances of State backing for terrorism. In situations where an equipped assault has been dispatched by a terrorist assemble or is approaching, it ought to be conceivable to utilize power in self-preservation against a "harboring" State gave join amongst terrorism and the State harboring it must be acknowledged by worldwide group. Be that as it may, it is still better to build up some new methodologies, outside self-preservation system, to manage such situations. 

A. Thorough Convention Against International Terrorism 

The best alternative before the worldwide group is to receive legitimate instruments managing demonstrations of terrorism. Be that as it may, any such instruments must be useful, if concurred by greatest number of countries, if not by all. India has displayed a proposition to the United Nations General Assembly for a thorough tradition against worldwide terrorism, which has been unsuccessful because of the inability to concur on the extent of the Convention. 

The definitional impasse has kept the selection of a Comprehensive Convention on International Terrorism.[xxxvi] This tradition would supplement the current system of universal hostile to terrorism instruments and would expand on key controlling standards effectively show in late against terrorist traditions the significance of criminalization of terrorist offenses, making them deserving of law and calling for indictment or removal of the culprits; the need to take out enactment which builds up special cases to such criminalization on political, philosophical, ideological, racial, ethnic, religious or comparative grounds; and accentuation on the requirement for Member States to collaborate, trade data and furnish each other with the best measure of help with association with the counteractive action, examination and arraignment of terrorist acts. Notwithstanding UN endeavors, various provincial endeavors are on approach to check this hazard. 

While the expansive accord among countries is demonstrating slippery, it is critical that Counter Terrorism Committee, set up under SC Resolution 1373 (2001) proceeds with its work in arrangement of model law. Further, it is the obligation of the Council to see that its proposals are actualized by all countries. The individuals from the Council, particularly changeless individuals, must utilize its impact in building agreement. 

B. Criminal Law Strategy [xxxvii] 

The second alternative, however apparently less idealistic in present situation, is internationalization of battle against terrorism. The universal arrangement against terrorism ought to require the states to acknowledge a more extensive scope of commitments identifying with the treatment of terrorists and terrorist associations. 

There are two approach to accomplish this. One path is to model such Criminal Conventions on the rule of auxiliary all inclusive locale with the goal that it is the obligation of every state to guarantee use of principle 'aut dedere, aut judicare'. As indicated by this run, the capturing State has a decision between arraigning or removing the hoodlums. It is obliged to choose either and can't just disavow crooks found on its region. Another route is to model such Convention on Rome Statute. Such Convention may set up global legal bodies equipped to arraign terrorist exercises – might be in the long run even a 'terrorism chamber'[xxxviii] of the International Criminal Court. 

A very much made multilateral administration, in light of upgraded obligations to criminalize and indict terrorist exercises, plans for participation in criminal matters, and additionally in the battle against agents of terrorism, is a key in making progress to find fear. What's more, one may trust that such administration additionally incorporates shields securing singular privileges of dread suspects. 

C. More noteworthy Responsibility on Security Council 

In conclusion and most feasible choice is that the Security Council ought to be all the more eager to assume grater liability in managing hostile to terrorism measures, as it has more extensive ramifications on global peace and security. The aggregate security administration of Chapter VII of the UN Charter is essential in tending to dangers to universal peace and security. The Security Council remains a key gathering for pondering. Aggravating disappointments in any case, the Council is the main conceivable wellspring of legitimation for the aggregate utilization of power. 

The inquiry then comes down to change of the Council as the present working of it, comes up short. Regardless of the fact that auxiliary change to the Security Council demonstrates slippery, the Secretary-General's Panel on Threats, Challenges, and Change speaks to a massive chance to create criteria to control the Council in choices on the aggregate utilization of power. 

The distinctive choices introduced above are not totally unrelated. Truth be told the rising practices propose that the states are interested in every single kind choice in the battle against dread. They should all things considered, obviously, act in consistence with the law, and specifically with worldwide law, of which different territories are applicable: the aw on the utilization of power, criminal law, philanthropic law and human rights. 


The above examination proposes that the law administering hostile to terrorist power is in a procedure of progress. The universal agreement, as it is developing, requires state participation or dynamic state conduct against terrorism. Global law now acknowledges that the battle against dread may require the utilization of extraterritorial power, however perhaps at the same time outside it. However, this practice stays focused to NATO battle against terrorism and is not appropriate to terrorism confronted by different nations including India. 

The developing agreement on the NATO activity against terrorism has put weight on the customarily prohibitive administration of self-defence.[xxxix] This weight has influenced the translation of exemptions to the restriction on power. This development might be useful in molding global strategy that reviles terrorism in all structure. 

Be that as it may, there is downturn danger to it. The extensively understood special cases to the prohibition on power might be manhandled to the degree of giving broad understanding to self-protection or even to acknowledge 'retaliatory self-defence'.[xl] The late routine of the states, especially US activity repercussions 9/11 verges on backlashes to unbalanced activity of self-preservation. In the event that whatever other nations were to depend on such expansive development of such administration, it would prompt subversion of world request. 

This is not to propose that no progressions are required in the current structure that handles against terrorism measures. Truth be told new dangers of 21st century require new techniques to adapt to that. All things considered, Security Council Resolutions 1368 and 1373 reflect alter in that course concerning the first run through worldwide group joined in unrestricted judgment of terrorist exercises. Henceforth we ought not bashful far from the change itself. Be that as it may, any such changes in addition to other things ought to incorporate an agreement on hidden standards, a relative equity of performers inside the framework, and a level of trust adequate to make co-operation conceivable.

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