Yes, a Settlement Freeze is Legally Possible. Settlement Itself Isn’t

Gershom Gorenberg

In the last few weeks, the Netanyahu government has introduces some new arguments for why it can’t freeze settlement, along with recycling the old confidence games. Among the new cons is the legal claim. As Ha’aretz reported:

A government source in Jerusalem said the Americans understood that even if Netanyahu agreed to a full freeze, the government did not have the legal authority to force private construction companies to stop building. The source said that if an attempt were made to order a halt to construction, contractors or homeowners would appeal to the High Court of Justice and probably win.

I’ve got an article in Saturday’s Washington Post explaining why this and other such claims are bunk:

…under Israeli Supreme Court precedents, the government’s authority to set policy in territory under “belligerent occupation” (the court’s terminology) trumps the interests of settlers and Israeli companies.

In 1992, the government of Yitzhak Rabin imposed a partial construction freeze in the West Bank. In two rulings, the Israeli Supreme Court rejected challenges to the freeze by developers and the municipal governments of settlements. The court eliminated any doubts left by those decisions with a far-reaching ruling in 2005, when it upheld the authority of the government and parliament to evacuate settlers from their homes in the Gaza Strip.

Achieving goals such as “peace, security, [and] international recognition” justified harming settlers’ property rights and civil rights as long as they received financial compensation, Israel’s highest court held. Let’s be logical. If, for reasons of state, the court allowed the government to remove settlers from homes where they had lived for years, it would allow the state to prevent Israelis from completing homes where they haven’t yet chosen the kitchen tiles. The only legal question would be how much compensation developers and buyers would receive. Netanyahu’s reported assertion that he’s hamstrung comes down to a hope that no one in Washington checks Israeli legal history.

Raising this argument may have boomeranged seriously. Prime Minister Netanyahu and Defense Minister Barak reportedly laid out the legal-restraint claim to American envoy George Mitchell in the first half of June. On June 15, at a press conference, President Obama said (hat tip to JTA’s Eric Fingerhut for reporting this):

“I’ve also made very clear that both sides are going to have to move in some politically difficult ways in order to achieve what is going to be in the long-term interests of the Israelis and the Palestinians and the international community,” he said. “On the Israeli side, that means a cessation of settlements. And there is a tendency to try to parse exactly what this means, but I think the parties on the ground understand that if you have a continuation of settlements that, in past agreements, have been categorized as illegal, that’s going to be an impediment to progress.” (my emphasis).

This is a very significant return to the  original U.S. view of settlements, after a long hiatus.

From the Johnson administration through the Carter administration, the official US stance was that Israeli settlements were illegal – in all territory taken in 1967, including the West Bank, which in turn includes East Jerusalem. Ronald Reagan, taking a position that could be termed voodoo law, said settlements were “not illegal,” though they were ”unnecessarily provocative.” As the New York Times reported in 1983, that put the State Department’s legal office in a serious bind. The lawyers couldn’t disagree with their boss, their president. Professionally, they also couldn’t disagree with the obvious meaning of the law. When asked about the legality of settlements, they would diplomatically evade the question.

From then on, presidents did the same. International law was clear (as I’ve explained here, here and here).  But as William Quandt, author of Peace Process: American Diplomacy and the Arab-Israeli Conflict Since 1967, once told me, after Reagan referred to settlement legal, “anyone who said it wasn’t…would be viewed as anti-Israeli” in the U.S. The State Department legal office, on the other hand, never revised its view, as the Washington Post reported two days after Obama’s press conference:

Despite the passage of time, the legal opinion, issued during the Carter administration, has never been revoked or revised. President Ronald Reagan said he disagreed with it — he called the settlements “not illegal” — but his State Department did not seek to issue a new opinion…

After the Post report, a former State Department lawyer wrote a letter to the paper with some important additional info. The article, said David Small,

…might be read to imply that the Carter administration broke new ground in finding Israeli settlements unlawful. It did not… Until President Ronald Reagan took office, our government shared the international consensus that this law prohibits changes such as civilian settlements. Mr. Reagan’s embrace of a distinctly minority contrary view was an unfortunate diversion.

The minority legal argument is that, because Egypt and Jordan — which Israel ousted from these territories in 1967 in lawful self-defense — were themselves illegal occupiers, Israel was not bound by international occupation law… The most important flaw in this argument is that it overlooks the rights of the people living there at the time…

Obama, it appears, has returned to the original stance, the one that accords with what’s distinctly the majority opinion. He has refused to bow to the political pressure of those who falsely equate “pro-Israel” with “pro-settlement.” It may be easier for him to do so because criticism of the settlements has become more widespread among Americans, including American Jews.

And it’s also possible that the timing has to do with the Netanyahu government’s claim that it legally can’t stop settlement. Nope, Obama replied, legally you can’t continue it.

That said, there is something a bit strange in Obama’s wording – “settlements that, in past agreements, have been categorized as illegal…” He doesn’t specify the agreements. The road map calls for a freeze in settlement but doesn’t refer to their legality. The agreement to which he’s referring is apparently the Fourth Geneva Convention itself.

28 thoughts on “Yes, a Settlement Freeze is Legally Possible. Settlement Itself Isn’t”

  1. OK, I followed the links to your earlier articles. You said you were ready for the usual misconceptions to be posted, so here’s mine. I believe that the Geneva Conventions do not apply because Judea and Samaria were never part of Jordan. You wrote:

    The fact that no state has recognized sovereignty in the West Bank is also besides [sic] the point. The purpose of the Geneva Convention – as top scholars in the field have explained to me – is to protect the population of the territory under occupation. The purpose is not to protect the sovereign rights of a country that lost territory. While almost no one has recognized Jordanian sovereignty in the West Bank, absolutely no one in the international community thinks that the territory is under Israeli sovereignty. That includes Israel, which controls the West Bank under the status of “belligerent occupation.”

    I accept your premises here, but they don’t lead to your conclusion. First of all, I agree that the purpose of the Conventions was not to protect sovereign rights. That’s irrelevant, though. The Conventions are not some universal norm applied to all relations between all states and populations. They are treaties based on reciprocity: I’ll respect your civilians, POWs, etc., if you’ll respect mine. Therefore, as leading jurists have pointed out, it’s of crucial importance whether the West Bank was Jordanian territory, or whether it was res nullius.

    You may also be correct that the West Bank is not under Israeli sovereignty, but that is irrelevant to Geneva Convention arguments. If the territories were res nullius in 1967 then the Conventions do not apply, whether or not Israel exercises sovereignty.

    Re the “belligerent occupation”: as I remember reading (I don’t have a legal background), that juridical concept arose surprisingly recently – mostly over the early 19th century – strictly in the context of wars between sovereign states. If (as we apparently agree) the territories were not under Jordanian sovereignty in 1967, then they are not now under belligerent occupation, any more than the Americas were under belligerent occupation by the Spanish conquistadors. (One could still argue of course that the Geneva Conventions apply to Palestine anyway.) You might call the territories “occupied” for rhetorical effect, or because the residents obviously don’t accept the legitimacy of Israeli rule, but that doesn’t say anything about the juridical concept of occupation.

    I agree with you that the so-called “occupation” is a bad thing for various reasons, but it’s not illegal.

    I’ll just add that the article by Sarah Leah Whitson that you linked to from your other post was cheap propaganda. I appreciate your fair-mindedness even when I disagree with you, and articles like hers just remind one how rare that fairness is (on both sides of the issue).

  2. To clarify my comment above: I’m talking about the whether the Geneva Conventions do or do not apply to the Territories, not about whether Theodor Meron or the ICC believed that they apply.

  3. Ploni, in 2005 the Israel Supreme Court confirmed that the West Bank is under “belligerent occupation.” This is not an issue that is up for debate:

    “The Judea and Samaria areas are held by the State of Israel in belligerent occupation. The long arm of the state in the area is the military commander. He is not the sovereign in the territory held in belligerent occupation (see The Beit Sourik Case, at p. 832). His power is granted him by public international law regarding belligerent occupation. ”

  4. Gershom, although I’ve never seen you comment on your own blog (despite always inviting your reader to do so!), I’d love to know if your criticism of Jewish building in the West bank includes all settlement blocks.

    Although your articles seem to apply a blanket condemnation to all settlements, I think the Israeli public probably shares your views regarding many settlements but not all(ones that probably won’t go anywhere in a final agreement if there ever is one).

    Would you be willing to clarify?

    Your devoted reader (and soon to be buyer of your books)


  5. International law forbids the acquisition of territory by force. While this has been applied to the territories taken after 1967, I believe it applies to the post 1848 territories as well. Before all you hasbarists get your panties rolled up and remind me that the UN allowed for the declaration of the state of Israel, one must remember that the creation of Israel was the UN’s greatest error. Many experts such as Robert Forrestal in the 1940s recognized the error of Israel’s creation, as well as Jewish critics like Noam Chomsky, Richard Cohen, and Tony Ksuhner,Tony Judt. Simply stated, the existence of Israel is an affront to civilization. While I admire your contortions on pre-1967 vs post-1967, calling yourself a progressive and supporting Israel within any borders is as tenable as a pregnant virgin. If you cannot completely disavow the existence of Israel, you are a fake progressive

  6. Ploni Almoni:

    “I’m talking about the whether the Geneva Conventions do or do not apply to the Territories, not about whether Theodor Meron or the ICC believed that they apply.”

    The problem with this argument (at least when it comes to the ICC) is that one of the determining features of whether the Geneva Conventions do or do not apply is the rulings of authoritative legal bodies on the matter. If your understanding of the Conventions conflicts with the rulings of the ICC (and the International Committee of the Red Cross, and the UN Security Council, etc., etc.) then, pretty well by definition, your understanding of the Conventions is mistaken.

    Instead of flogging the dead horse of “res nullius”, you would do better to understand WHY the ICC – and every other authoritative body – has ruled the way it has, and has rejected the opinion of your “leading jurists”. In particular, one key thing to consider are Article Two of the Fourth Geneva Convention, which makes it clear that all populations in territory captured in wars between signatory states are protected, regardless of the legal status of the territory in question. Even if the territories were not owned de jure by the country from which they are conquered, de facto control (in this case by Jordan and Egypt) is sufficient to trigger the provisions of the Convention.

    And more generally, you should think again about Gershom’s (correct) statement that the Fourth Geneva Convention is about protecting the population, not about protecting sovereign rights of countries. The people of the West Bank mainly had Jordanian citizenship prior to 1967, and they are thus protected persons under the Geneva Convention – a protection which includes protection against having Israeli settlers planted among them. The fact that Jordan did not have a good legal claim to the territory in which these people lived is irrelevant.

  7. Phillips:

    You are making precisely the same mistake as Ploni, but in the opposite direction. Israel’s legal rights to the territory it captured in 1948 have been internationally recognized by every authoritative body that has ruled on the matter. Even if you (or Noam Chomsky) think that they were wrong to do so, you can’t magically rewind to 1948 and claim that Israel is somehow illegitimate within those internationally recognized borders, or suggest that there is no difference between those and the territories captured in 1967, which do not have comparable legal authority behind the conquest.

    The fact is that the law banning conquest was not fully in place in 1948; it was in 1967. That is why Israeli conquests were recognized then, but later ones were not. Like it or not, that makes the crucial legal difference.

  8. Those of you “progressives” who say that building in the “settlements” will soon reach the point of no return in that it will be supposedly impossible to create a contiguous Palestinian state should then the FIRST people to support building settlements. This would pressure the Palestinians to make a deal as soon as possible in order to prevent that dire situation from arising. All this assumes, of course, that the goal of the Palestinians is to obtain “self-determination” and “to end the occupation”.

    Regarding the point that was made in a comment on the previous thread, according to Gershon’s world view, the Jewish Quarter of the Old City of Jerusalem and the Jewish presence at the Western Wall is also illegal. Yet I don’t hear the “progressives” making this point. I heard another very “progressive” Orhtodox-religious non-Haredi blogger who defines himself as more or less as anti-Zionist say he won’t travel on highway 443 (Jerusalem to Tel Aviv) because it is in “occupied territory”, but I pointed out to him that highway 1 ALSO goes in
    occupied territory as well , albeit far less, but he certainly travels on that one. I asked if he goes to the Western Wall, but I didn’t get an answer. Ironically, he admitted he lives on property that was taken from Arabs in Jerusalem in 1948. I fail to see consistency in this behavior.

  9. Bloix, thanks for the reference. I followed that reference to the Beit Surik ruling, which itself just referred to other cases…and I’m not motivated enough to follow the trail to the end right now. I’ll just repeat that I have no legal education; I might be wrong about the definition of occupation. At the very least, Mr. Gorenberg is correct that Israel considers it belligerent occupation. Of course a court decision settles a question in some sense but doesn’t necessarily determine the correct answer. I did notice that the 1907 Hague Convention was clearly in the context of state territory.

    I’m interested to know what the Court’s decision on belligerent occupation had to say about the claim of res nullius, though. That still seems the crucial issue to me, Gorenberg’s counterargument notwithstanding.

    To Y. Ben-David: yeah, that’s another example how that idealized definition of “settlements” doesn’t fit the real-world use of the word. I remember how Israelis reacted when in September 2000 the international media referred to Gilo (then under attack) as a settlement. “Why, we’re not settlers! Gilo is a Jerusalem suburb!” Similarly with all the anti-occupation yefei nefesh (beautiful souls) living in Ramot, French Hill, etc. Residents of French Hill are every bit as much settlers as are residents of Kfar Tapuah, according to the ostensible meaning of the word given by Mr. Gorenberg. But of course that’s not how the word is used in real life. Any lexicon entry for “settler” or “settlement” that doesn’t acknowledge that the usage is arbitrary and highly polemical is itself part of the polemics, whether that was the intention or not.

  10. As I’ve said before, the basic intro to many of these issues is in David Kretzmer, “The Occupation of Justice,” SUNY Press, 2002

    I respect comments that show real effort to learn the issues. It’s unusual in the blogosphere. In this case, the information is hardly top secret.

  11. David, it is just this kind of legalistic thinking that has gotten Jews into trouble over the ages. Yes, a law was passed making stealing of land an injustice, but it has always been immoral. Shlomo Sand has just published a book stating how the Jewish “people” were created in the 19th century by early neocons, and thus there is no Jewish claim to Palestine. The longer you illegally occupy it, the more antisemitism that will be. Obama will no longer issue a blank cheque to you people

  12. Brooks quoting that charlatan “Prof” Sand simply goes to show that the worst enemies of the Jewish people are frequently Jews themselves. Obviously Sand has never read the TANACH (Bible), Talmud, the medieval sages, Gershom Scholem’s book about Shabtai Zevi, the history of Eretz Israel, the early history of Zionism, etc, etc, etc.

  13. It’s amazing how those with the upper hand in Israel spend so much time intellectualizing on an obvious situation. The Jews hold the keys to the kingdom and at the present time their is no Arab country with the military power or is there any other Islamic nation in the Near East who could defeat them . (But that could change in the long run.) The government now can do pretty much what it wants and really doesn’t need approval from the world community.
    Israel’s resources primarilly financial and human will be depleted by “brush fire” wars over the years and the Palestinians and others must know this and thus keep the pot boiling ,by launching insignificant rocket attacks out of Gaza knowing their will be a Pavlovian response.which will keep their plight in the headlines and induce cost for Israel into the equation.What I gleaned from my last trip to Israel, primarilly in Tel Aviv ,was that the locals were about fed up with the individual tax bill. Politicians get the ” heave ho” faster from the voters over taxes than for anything else (a word to the wise)
    It is obvious that the present government needs “bogey men” like the thugs in Iran to keep their propaganda message going ;thus, Bibi abhores the possibility of an overthrow of the government in Iran .I believe that Iran would not use the bomb on Israel if it had one because they know it would result in a “free for all”. I as an American am more afraid that Israel would use it first as a “first strike” because of their paranoia. The US got the nuclear ball rolling like “Pandora’s Box and”can’t shut it off .It is more a matter of “macho” national pride for a countrysuch as Iran to have such armament not necessity.Such attitudes can be stifled if everyone would get together and work out a reasonable disposal program and countries like Israel would “fess” up” to it’s inventory.

  14. The whole question of the “legality” of the settlements is a red herring put out by the “progressive” Zionists in order to remove the feeling of guilt many of them have from living on land Arabs fled or were expelled from in 1948 (not that I have any problem with it since they started what they announced would be a genocidal war).
    The reason that it is unimportant whether they are “legal” or not is because if the Palestinians ever deign to sign a peace agreement with Israel, then the settlements will either be removed or will remain and thus the problem will resolved. After all, the settlements on the Golan are all “illegal” acccording to all opinions, because, unlike those in Judea/Samaria the land they are sitting on was part of another sovereign state before 1967 and never were part of the 1922 British Mandate in Palestine, yet I don’t recall Gershom or the other “progressives” complaining about them.

  15. Y is emblamatic of the “Johnny-one notes”.The old tired “we prefer to live in the past to justify our present conduct”.Who gives a damn about who started the 1948 war!It matters who won and how they won and the liberties they took with the peace.The British propaganda machine promised all the same pie because they wanted
    out of Palestine and could have cared less who won or lost.The Ben Gurion crowd of terrorists were an even match for the Arabs because of their cadre of experienced British -trained combat tested officers and NCO’s.The Arabs ,except for the Jordanian Arab Legion, were a motley group especially the Palestinians and they still are.

    There is no way that any of the settlements I saw are going without terrible bloodshed,legal or illegal. I don’t see where the IDF will have the stomach for such bloodshed among their own people. Bibi knows this and that his why he lets the expansion go on.The word to the Palestinians is ;”you have been had so go live somewhere else”

  16. YBD:

    I don’t know if I count as a “progressive”, but I will happily go on record as complaining about the Golan Heights settlements, and as regarding them as equally illegitimate as those on the West Bank.

    The practical reason that it matters that the settlements are illegal is that IF a peace treaty is agreed, it will not be negotiated and signed in a legal vacuum. The illegality of the settlements means that the presumption should (and will) be for their removal, and that if Israel wants to retain any of them, it will be a major concession to her which will require her to surrender things in other areas (e.g. via land swaps). This would not be the case were they legal.

  17. Thanks, Mr. Gorenberg, for the reference to the book. I hadn’t seen you mention it before because I only recently started reading your excellent blog. And it’s only recently that I’ve begun to understand the significance of international public law: before, I’d ignored it because, well, it was written by colonialists, because the law might not be just, because legality will be irrelevant to any actual political resolution, etc.

    That said, judging the book by its cover, it doesn’t seem to address the questions I’m asking: what is the status of the Territories according to a correct reading of international (as opposed to Israeli) law, and is settlement of those territories legal, in principle, according to international law? I do not happen to be personally interested in decisions reached by the Supreme Court, the ICJ, or any other body. They do not answer the questions I asked. I doubt that any events that occurred after 1967 would be relevant to my question either.

    Here’s a book I’d like to read, if it exists: a collection of essays and commentary by leading public-law jurists arguing both sides of the case and responding to the other side’s arguments. It might include, along with these arguments, commentaries such as that of the ICRC on the Geneva Conventions as well as info on the original understanding of the drafters and (at least as importantly) of the ratifying states. It would not emphasize court decisions at all, only the international public law arguments presented.

    Does anybody reading this know of such a book (reasonably priced, hopefully)? If so, thanks in advance for any recommendations.

  18. G (or would you prefer “H”?) –
    I can only hope you are right. Gush Katif went under without any resistance. A terrible precedent.

  19. Mr. Ben-David,

    You tend to attack Haim and I based on a two-dimensional cut-out of “progressives” that is not simplistic but anachronistic – quite similar to the way you attack Palestinians and Muslims.

    I’m really sorry to disappoint you: I don’t live in an Arab house abandoned in 1948.

    And to disappoint you again, I do condemn settlement in the Golan Heights.

    It’s true that especially in the first years of the occupation, many members of parties of the old Israeli left, especially Ahdut Ha’avodah, supported settlement on the Golan. As a historian, I describe this in “Accidental Empire,” and explain how they came to this position. As a politically active Israeli, I believe they were deeply mistaken.

  20. Gershom-
    I never said you personally lived in an Arab house, but your Yedidya congregation is on Arab land, and no doubt many of its members also live on Arab land which is in the neighborhood. An old friend of yours, another “progressive” religious blogger, who, unlike you is anti-Zionist, said he refuses to travel on highway 443 because it is on occupied Arab land (just like the Western Wall and Jewish Quarter of the Old City), but he also admitted that he himself DOES live on top of an Arab house. When someone else pointed out the hypocrisy of this, his reply is “I am not responsible to compensate the old owner, the state is”. This is rather odd reasoning.

    It also doesn’t surprise me that you want to get rid of the Golan and oppose settlement there, but you don’t mention it much here at all, possibly because the pioneers in settling the area, were Leftists who are politically “kosher” in the eyes of “progressives”, even if wrong in this case, unlike those “Bible thumping, gun-toting, kippah-wearing extremist settlers” in Judea/Samaria who get the “progressives” so agitated. Apparently, settlement as such is not the problem, but what tribe one belongs to that makes all the difference.

  21. Gershom-
    One other say I have a “simplistic view” of “progressives” and “Palestinians”. What would you call your characterization of the Jews of Gush Katif as being similar to the Ku Klux Klan, which I have not forgetten? (Remember your posting on the Israel Post Office making a stamp about Gush Katif and you stated that it would be like the US Post Office honoring the Klan?). You , as someone who has researched in depth the history of the settlement movement know that the people who settled Gush Katif were NOT Gush Emunim-types and it was Rabin and the Labor Party that pushed for it in the first place.

  22. Ploni,

    I should preface my comments by saying that I don’t have any background in Israeli or international law either. You might be interested in the comments thread on this topic at the right-of-center American legal blog, the Volokh Conspiracy. In particular, this comment summarizes the argument made by the ICJ’s advisory opinion, which centers on the fact that GC4, by its own terms, applies to conflicts between High Contracting Parties (including the Six-Day War) and not just territory captured from an HCP by another HCP. There’s also plenty of criticism of that viewpoint.

    The author of that comment also addresses the terra nullius line, pointing out that the ICJ, in its advisory opinion on Western Sahara, found that the concept (at least, as understood at the time the territory was colonized by Spain) was extremely narrow: it only applied to territories free from tribes or peoples who had social and political organization. Unfortunately, the opinion doesn’t cite any sources for its conclusion.

    More to the point, your insistence on trying to find “the correct answer” independent of judicial glosses seems pretty formalistic; not only might it be the case that the other legal materials are simply indeterminate on this point, but it also ignores the judicial role in creating law. (A professor of mine liked to tell the story of how he was interviewed by a local news agency after the U.S. Supreme Court’s decision in Planned Parenthood v. Casey, which allowed states to place certain restrictions on abortion but not to ban it outright. After he had given his views, the cameraman wanted some stock footage and asked him to take a copy of the Constitution off the shelf, open it, and point to the abortion clause! Of course, American abortion jurisprudence is a bad example of the point I’m trying to make.)

    That said, I have to say that I share your (since abandoned?) skepticism about the relevance of international law. I tend to agree with recent reductionist accounts of international law that see it as a special kind of politics. Can I ask what changed your mind?

  23. For me this is like two kids who have a fight. “He said this”, “yeah but he did that”, “but he started it”. Enough already. The world should act like a parent telling the two parties to stop it and behave. Going back through what should or should not have happened, or what is or was illegal is a red herring. Draw the damn line and if your settlement is in Palestine good luck and send us a postcard. If you don’t like it leave. Unravelling all this crap is a waste of time. Let them build their stupid houses and get on with the peace process without them, making it clear that new Israeli settlements may find themselves in Palestine and subject to Palestinian jurisdiction. At the moment building settlements seems to be a way to stall the peace process to allow expansion. You have to nullify that. A proper state has to have minorities after all. The rest is about putting a financial package together that adequately compensates arab losses. You want ten english, gentile pounds from me to help make this go away, you can have it. Make it twenty.

  24. I should note that the above argument is also made in the book by Professor Kretzmer that Gershom recommended, in pages 34 and 35.

  25. “Shlomo Sand has just published a book stating how the Jewish “people” were created in the 19th century by early neocons, and thus there is no Jewish claim to Palestine. “

    This is the second time I’ve seen this book referenced in a comment on this blog. Apart from highlighting how political motivations can lead people to write some really stupid things, it doesn’t appear to be of any value. The book has been widely discredited by people who are actually experts in the field (unlike Mr. Sand), and from all accounts (even Tom Segev’s, who unsurprisingly supported the book) is an example of shooting the arrow and drawing the target around it.

  26. LB-
    Just try saying that there is no such thing as a “Palestinian people” to the Jewish “progressives” and that the first use of the term Naqba was when the Arabs of Palestines protested the severing of Palestine from Syria around 1920 by the victorious British and French after World Wra I. They said “we are not Palestinians, we are Syrians, this is a Naqba!”. The Jewish “progressives” will go crazy and say you are lying..

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