Sexual Intimacy, Gender Identity & Fraud: A Conversation

This blog post was written by Heather Milligan, Communications Intern for the Global Justice Academy. The blog reports on a recent seminar event hosted by the Centre for Law and Society at The University of Edinburgh and led by Professor Alex Sharpe of Keele University on sexual intimacy, gender identity and fraud. 

The Centre for Law and Society at the University of Edinburgh recently hosted a presentation and seminar discussion on sexual intimacy, gender identity and fraud. Participants from a range of interdisciplinary backgrounds compared legal, cultural and ethical standpoints to debate convictions of gender identity fraud: either as demonstrating respect for the sexual autonomy of female complainants, or as a concerning example of criminal law overreach. The discussion was framed and contextualised by a series of sexual offence prosecutions brought against young gender non-conforming people (designated female at birth) in recent years in the United Kingdom on the basis of gender identity fraud, all of whom were convicted and placed on the Sex Offenders Register. Professor Alex Sharpe (Keele University) introduced the topic with a brief film clip from the 1992 film ‘The Crying Game’ in order to illustrate the type of intimate encounter between cisgender and transgender individuals that has led to such convictions. The film also served to demonstrate the complainants’ typical responses to cis-trans intimacy, in which the defendant’s gender history is (apparently) not disclosed and this non-disclosure is later perceived as deceptive and harmful.

Professor Sharpe put forward a persuasive argument for bringing an end to the criminalisation and prosecution of these cases, advocating greater individual responsibility for sexual intimacy while remaining sensitive to the difficulties involved in questioning the statements of rape complainants. Her initial presentation was structured around three key philosophical and criminal law concepts: consent, harm and deception. Firstly, the point was made that claims of non-consent in the discussed cases relied heavily on a ‘right to know’ ideology, in which complainants foregrounded an entitlement to the defendants’ gender history, simultaneously dismissing and overruling the defendants’ rights to privacy and dignity. The seminar group discussed the idea that this apparent right to know is often conflated with a desire to define transmen as women against their will: an act of degradation. The discussion prompted resonant legal and ethical questions: should there be an obligation to disclose information prior to intimacy, or should our ethical response be to scrutinise the cisgender demand to know? With implications for sexual offences more broadly, for consent to be informed, how transparent must sexual partners be, and at what cost?

Other examples of desire-led intimacy were put forward to suggest that individuals may wish to know many facts about their sexual partners – for example age, income, drug use, criminal conviction – yet the omission of this information would never lead to prosecution. The specific targeting of gender history is an issue of inconsistency further indicative of the discriminatory effects of civil society and criminal law. These cases seemed motivated by the underlying transphobic (and homophobic) assumptions that no cisgender person would, with full disclosure of their gender history, willingly have intimate relations with a transgender person. This led to interesting audience reflection that complainants often only come forward when encouraged to do so by family or community members, and that the pressure of homophobic society, the fear of being identified as a lesbian by others and internal crises of identity and sexuality, may have motivated the complaints. The societal presumption that any non-cis non-heterosexual intimacy is inherently harmful was identified as an aggressive amplifier in these cases.

 
Finally, a distinction between acts of omission and acts of deception was drawn. It was argued that in cases of gender history and identity disclosure, most often these were instances of ‘not saying’ rather than active or intentional deception, and that these entailed a variety of valid justifications – not least the physical and psychological risk involved in acts of disclosure. Professor Sharpe invited the audience to understand these cases as a balancing of potential harms, weighing the complainants’ feelings of betrayal and distress (potentially a response conditioned by transphobic and homophobic anxieties) against the defenders’ risk of degradation and abuse. Opening up questions and discussion to the audience encouraged a lively discussion on related issues such as the ethics of sexual preference and the reproduction of power dynamics; the (positive) ambiguity of desire; what acts can really be said to constitute disclosure; and, ultimately, whether pleasurable acts retrospectively re-imagined can truly be labelled as harmful.

This event was presented by Law Reform and Social Justice, and The Centre for Law, Arts and Humanities and the Gender Institute.

Just Justice – how can we achieve the fair distribution of legal resources?

The Edinburgh Centre for Legal Theory organised an author-meets-critics workshop on the manuscript of the book Just Justice by Frederick Wilmot-Smith. This workshop was funded by the Global Justice Academy’s Innovative Initiative Fund.  Lucas Miotto, a PhD candidate in the Edinburgh Law School, introduces the key issues and questions raised by this soon-to-be-published book.

Resources must be fairly distributed. Hardly anyone would disagree with this statement. Besides, most people would agree that the fair distribution of resources is something valuable which we should care about. And people do care about it. Many of the heated debates about social security, social benefits, education, public health and immigration which have recently caught the attention of the public and the media are – or at least are connected to – debates about the fair distribution of resources. It is no exaggeration to say that debates about the fair distribution of resources are at the core of past and present public debate.

Just as we talk about the distribution of economic or educational resources, we can talk about the distribution of legal resources. The public needs lawyers and courts. Like any other resource, lawyers and courts are scarce and access to them doesn’t come for free. So, how about the fair distribution of legal resources? What sort of distribution would count as fair? Curiously, and unfortunately, questions like these are under-appreciated. Not only has the public been timid in addressing questions about the fair distributions of legal resources; an in-depth philosophical treatment of the topic has been entirely missing. Frederick Wilmot-Smith’s Just Justice attempts to correct this.

The book directly engages with many puzzles associated with the fair distribution of legal resources. It starts by questioning the very object of distribution. What should be fairly distributed? To say ‘access to lawyers and courts’ would be too simplistic an answer. The object of fair distribution, Wilmot-Smith argues, is broader than this. Of course, he doesn’t deny that it is important to fairly distribute access to legal resources such as lawyers and courts. But the questions about the fair distribution of these legal resources hang on a broader debate about the fair distribution of the benefits and burdens of the justice system. It is only after we have sound principles for the fair distribution of such benefits and burdens that we will be able to address the fair distribution of legal resources (e.g., access to lawyers and courts).

The core part of the book puts forward principles for the fair distribution of the benefits and burdens of the justice system. In a nutshell, the principles defended in the book support the establishment of a justice system in which benefits and burdens are equally distributed among citizens. Practical implications are myriad, and some of the institutional reforms required to meet the proposed principles radically clash with established views about the justice system. The book, however, doesn’t shy away from defending these radical implications and objecting to established views. In fact, some of these implications are defended at length. For, example, the book has an entire chapter dedicated to defending the view that the justice system should be financed by everyone – which is perhaps the most controversial implication of the principles defended throughout the book. Discussions about the privatisation of legal resources and alternative dispute resolution systems also receive an extensive treatment. The book is no doubt an extremely timely and important contribution to legal philosophy and to the public debate in general. It sharply allies care for philosophical rigour with readability and public relevance.

The Edinburgh Centre for Legal Theory had the pleasure of hosting an author-meets-critics workshop to discuss Frederick Wilmot-Smith’s Just Justice on May 24th, 2017. The event, jointly organised by Luís Duarte d’Almeida and Euan MacDonald, featured a total of eight commentators – ranging from philosophy to criminal law and political science – each of which focused on a different chapter of the book manuscript.

Participants were keen to engage in discussion and offered both critical remarks and constructive feedback. As a result, discussion was very lively, friendly and informal. We look forward to the publication of Just Justice, and we would like to express our gratitude to the Global Justice Academy, whose support made this event possible.

Keeping Guantánamo on the Map

Vivek Bhatt, a Student Ambassador with the Global Justice Academy (GJA), has written this blog following a panel event he attended at the Edinburgh Law School. The event, hosted by the GJA, explored the continuing relevance of legal and political issues arising from detention at Guantánamo Bay.

The United States acquired control of Guantánamo Bay in 1903, when it entered into an agreement with Cuba for the perpetual lease of the 45 square mile area.[1] Guantánamo Bay has since been operated as a naval base, and in the 1990s, it was ‘refashioned as a detention camp for those seeking asylum in the United States.’[2] From 1991 to 1996, more than 20,000 Cuban and 36,000 Haitian asylum seekers were interned in Guantánamo Bay.[3] And, in November 2001, merely days after the declaration of a ‘global war’ against terrorism, a US Military Order authorised the indefinite detention and trial of ‘enemy combatants’ at the camp. The US promptly began transferring individuals captured during its international counterterrorist operations to Guantanamo Bay. A total of 770 have been held there through the course of the war on terrorism. Only 8 men have been convicted, with more than 500 released during the Bush administration, 198 released during Obama’s presidency, and 9 killed in custody. 41 remain in detention, with 14 considered high value detainees and 26 designated as ‘forever prisoners,’ individuals whose knowledge of practices at Guantánamo Bay renders them too dangerous to be released.

The legal justifications provided for detention at Guantánamo Bay have been vague, at best. Those transferred to the camp are characterised as ‘enemy combatants’ under the laws of armed conflict, even though many have been captured outside areas of fighting.[4] The camp’s location in Cuba has, furthermore, allowed officials to assert that detainees are not entitled to the protections of the US legal system. According to Harold Koh, Guantánamo Bay is effectively a ‘rights-free zone’ constructed by the US. [5] Its detainees, writes Agamben, ‘[Are] legally unnameable and unclassifiable beings.’[6] After the release of the Senate Intelligence Committee’s report on CIA torture in 2014, it was finally confirmed that many of these detainees have been subjected to ongoing torture practices as part of their interrogation. The camp has, therefore, come to symbolise the legal and ethical dubiousness of the war on terror, with the ‘visceral image’ of the orange Guantánamo jumpsuit now engrained in public memory and popular culture.[7] Fifteen years on, however, International attention to the legal and political issues arising from detention at Guantánamo Bay is waning. Some, it seems, believe the worst is over, while others may simply have accepted that the goings on at the camp are part of an inevitable, ‘new’ reality of the war on terror.

This was the topic of ‘International Law and Guantánamo Detention Operations: Why it Matters,’ a panel event hosted by the Global Justice Academy and the Edinburgh Law School on 9 February 2017. The event aimed to examine the range of international law and human rights issues relating to detention operations in Guantánamo Bay, and was opened by Kasey McCall-Smith, lecturer in public international law at the Edinburgh Law School. Dr McCall-Smith provided an overview of the breaches of international law at Guantánamo Bay. She began by pointing out that the United States is not solely responsible for these breaches; the international community has facilitated the detention programme at Guantánamo Bay, and has failed to react to the grave violations of human rights that have occurred there. The violations of human rights at Guantánamo Bay begin with rendition flights, which transport terrorists to the camp for interrogation, and have been allowed to land at various airports throughout Europe. Various areas of international law are relevant to rendition, but particularly the prohibition of enforced disappearance. Once at Guantánamo Bay, detainees have been denied their right to visits from a consular official of their national State, protected under Article 36 of the Vienna Convention on Consular Relations.[8] As Dr McCall-Smith pointed out, various provisions of the International Covenant on Civil and Political Rights have also been violated in the course of detention and interrogation at Guantánamo Bay. These include the right to non-discrimination,[9] the right to liberty and security of person,[10] the right to be heard before a court,[11] and the right to be treated with respect for the inherent dignity of the person.[12]

Meanwhile, Jacques Hartmann, a senior lecturer in Law at the University of Dundee, spoke of his research into arbitrary detention in non-international armed conflicts. This topic is particularly relevant to Guantánamo Bay, given that most of those taken to the camp are captured as enemy combatants. To Dr Hartmann, the detention of suspected terrorists at Guantánamo Bay is symptomatic of a much larger problem: the lack of treaty provisions that explicitly address detention in non-international armed conflict. The lack of an express provision leads many to infer the authority to detain from the authority to use lethal force. Yet Dr Hartmann warned against such inferential reasoning, reiterating that any detention without legal justification is arbitrary, and is thus prohibited under both international human rights and humanitarian law.

As suggested above, the most widely discussed human rights violation at Guantánamo Bay is the continued use of torture. This was the focus of an address given by Dr Mitch Robinson, an international law specialist at the United States Department of Defense. He characterised Guantánamo Bay as a concentration camp; the only people detained there since November 2001 have been Sunni Muslim men. Dr Robinson spoke of one of his clients, a Saudi national who was accused of financing terrorism, and was in the CIAs’ torture programme for three and a half years. Though reports from early questioning suggested that he ‘does not appear to be a financing mastermind,’ the client was repeatedly deprived of sleep, sodomised and water-boarded, among other things. Robinson proposed a strategy for global human rights litigation relating to Guantánamo Bay. He refers to this strategy as ‘collateral advocacy’ for detainees’ human rights through domestic courts, regional human rights bodies, the UN’s human rights treaty bodies and high commissioner for human rights, international non-governmental organisations, civil society, and the application of legal or diplomatic pressure by other States.

Andrea Birdsall, lecturer in international relations at the University of Edinburgh, pointed out that as the international community has become aware of torture practices in Guantánamo Bay, the US government has moved along a ‘continuum of denials.’ This began with literal denial, a phase in which the Bush administration simply argued that the US Government does not commit acts of torture. This was, however, challenged by the release of the torture memos,[13] which made clear that torture was being used as a government policy. This led to ‘interpretive denial,’ in which it was argued that detainees were not subjected to torture, but to ‘enhanced’ or ‘increased pressure’ phases of interrogation that did not entail the ‘near-death’ experiences that would constitute violations of international or US domestic law. In the final stage, ‘implicatory denial,’ it was admitted that ‘mistakes had been made’ in the interrogation of suspected terrorists, but it was argued that the measures taken were justifiable in times of crisis. To Dr Birdsall, the US government’s treatment of terrorist suspects does not signify the demise of the anti-torture norm. Instead, the discourse surrounding Guantánamo Bay has legitimised the international law prohibition of torture, reinforcing a shared global understanding of the prohibition’s non-derogability.

The panel concluded that the programme of detention and interrogation at Guantánamo Bay warrants continued attention from scholars, lawyers, governments, and international civil society. There are three reasons for this conclusion. Firstly, violations of human rights are ongoing; Article 14 of the Torture Convention, for example, requires States parties to rehabilitate victims of torture, an obligation the US government has not fulfilled in relation to Guantánamo detainees.[14] Secondly, Guantánamo Bay is unlikely to be closed in the foreseeable future, and conditions may in fact worsen in coming years. And, finally, the prominence of human rights violations at the camp presents an opportunity for scholars and practitioners to reflect upon the state of the international rule of law, and to reify the value of the fundamental rights protected within the international legal order.

About the author

Vivek Bhatt is an Edinburgh Global Research Scholar, and is reading for a PhD in Law. He holds an MSc in Political Theory from the London School of Economics and a Master of International Law from the University of Sydney. Vivek’s research interests span public international law, international political theory, and counterterrorism. His current research relates to the engagement of individuals in the international legal system through the course of the war on terror.

[1] Fleur Johns, ‘Guantánamo Bay and the Annihilation of the Exception’ (2005) 16(4) The European Journal of International Law 613, 616.

[2] Ibid.

[3] Ibid.

[4] Mary Ellen O’Connell, ‘The Choice of Law Against Terrorism’ (2010) 4 Journal of National Security Law & Policy 343, 353.

[5] Quoted in Joan Fitspatrick, ‘Spekaing Law to Power: The War Against Terrorism and Human Rights’ (2003) 14 European Journal of International Law 241, 242.

[6] Giorgio Agamben, State of Exception (Kevin Attell trans., University of Chicago Press, 2005) 3.

[7] This phrase was used by Mitch Robinson, a panelist at ‘International Law and Guantánamo Detention Operations: Why it Matters’, hosted by the Global Justice Academy and Edinburgh Law School on 9 February 2017.

[8] Vienna Convention on Consular Relations, signed 24 April 1963, 596 UNTS 261 (entered into force 19 March 1967) art 36.

[9] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 2.

[10] Ibid art 9(1).

[11] Ibid art 9(4).

[12] Ibid art 10(1).

[13] See, for example, Philippe Sands, ‘Torture Team: The Responsibility of Lawyers for Abusive Interrogation’ (2008) 9 Melbourne Journal of International Law 365, 366.

[14] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) art 14.

Rethinking the International Criminal Justice Project in the Global South

This guest post is by Michelle Burgis-Kasthala, who is currently a Research Fellow at the Centre for International Governance and Justice, RegNet, ANU. Michelle will be returning to Edinburgh Law School in 2017-18. This post is re-blogged from ‘Regarding Rights: Academic and Activist Perspectives on Human Rights’ and is based on an article published recently in the Journal of International Criminal Justice: ‘Scholarship as Dialogue? TWAIL and the Politics of Methodology’.

ICC in Ivory Coast in 2013. Image: BBC News

ICC in Ivory Coast in 2013. Image: BBC News

Concerns about the International Criminal Court’s (ICC) continuing relevance in Africa following exit announcements by Burundi, South Africa, and Gambia are widespread. But the picture across the continent is more complex. While some African states have clearly rejected the Court, the majority remain members. How can we explain the fracturing of the Court’s support in Africa? More fundamentally – what is the best way of studying international criminal justice and its effects in the Global South – whether in Africa or elsewhere?

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Local Space, Global Life: a notable methodological & theoretical contribution to international law scholarship.

Vivek Bhatt is reading for a PhD in Law, and is a Global Justice Academy Student Ambassador for 2016-17. Here, he reviews Luis Eslava’s Local Space, Global Life: The Everyday Operation of International Law and Development (Cambridge University Press, 2016).

Luis Eslava’s Local Space, Global Life considers the ways in which international law and the development project jointly produce local spaces and ‘locals’ that conform to global ideals.[1] The author moves beyond the doctrine of legal subjects,[2] a concept that confines many international law scholars to the relationship between law and states, the primary bearers of legal ‘status.’ To Eslava, international legal norms move across spaces and jurisdictions, constituting everyday, local, and private life. Dr Eslava traces the conceptual trajectory of the international development discourse, which became prevalent following Harry S. Truman’s 1949 inaugural address.[3] Truman identified the Third World nation-state as the ideal unit for the attainment of developmental goals. International law and development became inextricable; the former would contribute to the ‘making of a new world order’[4] by aiding the development of Third World nation-states. Yet according to Eslava, world leaders gradually became disenchanted with the idea that development could be achieved through reform at the nation-state level.[5] This led to the identification of the local jurisdiction as the new ideal locus of international development.

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Workshop on Dignity: Reporting from an Innovative Initiative Fund Event

 

The Edinburgh Legal Theory Research Group had the pleasure of hosting, with the kind sponsorship of the Global Justice Academy through its Innovative Initiative Fund, the Workshop on Dignity on 6 October 2016. The workshop had three speakers: Ioanna Tourkochoriti (National University of Ireland Galway), Colin Bird (University of Virginia), and Adam Etinson (St. Andrews).

This guest post by co-organisers, Lucas Miotto and Paul Burgess, discusses the presentations and debate that took place.

The workshop was well attended by both staff members and students. An interesting, and beneficial, feature of the audience, was that it reflected the interdisciplinary character of the topic; we had attendees coming from myriad fields, such as politics, human rights, international and constitutional law, as well as legal and moral philosophy. Discussion was very lively and, perhaps due to the diverse character of the audience, presenters received feedback and questions from several different angles.

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The Apportionment of Shame: Rodrigo Duterte and the Cosmopolitan Discourse of International Criminal Law

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GJA Student Ambassador, Vivek Bhatt

The Global Justice Academy is delighted to launch the second year of its Student Ambassador programme with a guest post by Vivek Bhatt. Vivek is an incoming student reading for a PhD in Law. He recently completed the MSc in Political Theory at the London School of Economics, and holds a Bachelor of Arts (Advanced) (Honours) and Master of International Law from the University of Sydney. His primary interest is in international laws relating to counterterrorism, conflict, and human rights.  

Rodrigo Duterte’s war on drugs in the Philippines has recently been deemed an international crime. This post reflects upon issues arising from the condemnation of Duterte, asking whether international criminal law can enable the realisation of cosmopolitan ideals. 

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Rodrigo Duterte, President of the Philippines

When elected President of the Philippines on 9 May 2016, Rodrigo Duterte vowed to reduce rates of drug-related crime within the state. Duterte has since waged a violent anti-drug campaign, authorising the extra-judicial execution of individuals thought to use, possess, or traffic illegal substances.  The President’s “death squad” comprises select members of the police force and civilian volunteers. Most of these individuals were lured into their roles as amateur mercenaries through payment, and promises of impunity for their actions. Others were coerced into joining Duterte’s campaign; men and women were guaranteed immunity from punishment for their own drug-related offences in exchange for their services as assassins.[1] The OHCHR suggests that over 850 people have been killed since Duterte’s election, but reports that take into account unexplained deaths during that period suggest the number is closer to 3,000.[2]
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Reflections from the Association of Human Rights Institutes 2016 Conference

Dr Kasey McCall-Smith and Dr Dimitrios Kagiaros attended the 2016 Association of Human Rights Institutes (AHRI) conference on behalf of the Global Justice Academy. The conference was hosted by the Netherlands Institute of Human Rights (SIM) of Utrecht University, and welcomed over 200 academics and researchers. In this short post, Kasey McCall-Smith reflects on the discussion.

The theme of the conference was ‘50 Years of the Two UN Human Rights Covenant: Legacies and Prospects’. The conference enjoyed presentations, debates and interventions from well-known faces on international human rights scene.

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Getting to Grips with Guantánamo IV: Person Zero & Camp 7

KMSThis post is by Kasey McCall-Smith: a lecturer in Public International Law and programme director for the LLM in Human Rights at Edinburgh Law School.

This post is the fourth in a series of blogs that chronicle the history and current state of play regarding the US rendition and detention programme in the immediate aftermath of 9/11. They were written during the author’s visit to Guantánamo Bay, Cuba, to observe military commission proceedings in the case of USA v. Khalid Shaikh Mohammad, et. al.  30 May – 3 June 2016, which is the initial phase of her project Getting to Grips with Guantánamo.

In my last post, the use of evidence obtained through torture in the case of US v. Khalid Shaikh Mohammad, et. al. (KSM case) was introduced. This post further considers how torture impacts detainees held at Guantánamo and the 9/11 trial. An interesting addition to the already complex pre-trial considerations is the possible appearance of a detainee who has not been seen in public since he was rendered into the custody of the CIA. Abu Zubaydah, a Palestinian, is believed to have been taken into CIA custody in 2002 following his capture in Pakistan. After three years on a CIA ‘black site’, he was delivered to Joint Task Force-Guantánamo (JTF-GTMO) in 2006 where he remains a High Value Detainee (HVD) despite never having been charged with a crime. As characterised by former FBI agent, Ali Soufan, Zubaydah is the ‘original sin’ of the US in its post-9/11 anti-terror campaign.

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Getting to Grips with Guantánamo III: Torture Evidence

KMSThis post is by Kasey McCall-Smith: a lecturer in Public International Law and programme director for the LLM in Human Rights at Edinburgh Law School.

This post is the third in a series of blogs that chronicle the history and current state of play regarding the US rendition and detention programme in the immediate aftermath of 9/11. They were written during the author’s visit to Guantánamo Bay, Cuba, to observe military commission proceedings in the case of USA v. Khalid Shaikh Mohammad, et. al.  30 May – 3 June 2016, which is the initial phase of her project Getting to Grips with Guantánamo.

Right now, on a small island in the Caribbean, what will ultimately be one of the most comprehensive examinations of torture is taking place in the form of a military commission proceeding in the case of US v. Khalid Shaikh Mohammad, et. al. (KSM case). A common understanding among the observers that are witnessing KSM is that half are there to see the 9/11 trial and half are there to see the torture trial. In anticipation of what many view as a foregone conclusion, the defence lawyers are diligently representing their clients in order to ensure that if the ultimate penalty, death, is pursued in the sentencing phase of the trial; then the brutality that they suffered at the hands of the CIA is in the trial record. This record will be instrumental to mitigation of the death penalty and speak to the reality that much of the evidence presented may have been extracted or derived through torture, which is prohibited under international law.

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