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Former UN Special Rapporteur for Palestine: ‘International law is not an a la carte menu’  

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Boğaziçi University’s Faculty of Law hosted its first International Law Conference (BILC) and brought together a large number of academics and experts including Michael Lynk, the United Nation’s former Special Rapporteur for Palestine from around the world to critically examine the current international legal order, particularly in the aftermath of Israel’s invasion of Gaza and the massacre of dozens of thousand of civilians.

During the conference, Michael Lynk gave a presentation onIsraeli Settlements under the Rome Statute of the ICC” in the session titled “Occupation, Racism and Resistance” moderated by Hilal Elver, University of California. Professor, Former UN Special Rapporteur on the Right to Food along with the speakers Muthucumaraswamy Sornarajah who is the Emeritus Professor at National University of Singapore and Mohsen al-Attar, the Associate Dean and Professor at Xi’an Jiaotong-Liverpool University. Lnyk, saying that he believes in justice points out that those of us who care for Palestine can become cynical with respect to the aspirations of international law.

Linyk, hoping the absolute permissibility of any and all of us to be skeptical about international law’s pretensions underlined that it’s absolutely wrong to be cynical about international law’s possibilities and completed his presentation with a quotation from Christoph Heusgen, the former German Ambassador to the UN which is “international law is not an a la carte menu” meaning it must apply to all.

We bring the notes from the former UN Special Rapporteur for Palestine…

There is still life for international law to shape the politics

“We must not be starry-eyed about, in any country, in any system, with respect to what law can wind up achieving. I think only error is achieved through hard work, through lobbying of legislatures, through social movements, through the fervent intellectual ideas coming up and challenging what is the dominant area of thought. And that in any domestic system, and particularly including in the international system, it always is an area of great tension between law in the service of power and law in the service of justice.”

“And those of us who believe in justice, who believe in international humanitarian and human rights and criminal law, will know it always will be a struggle to widen that space, to be able to allow justice with as much oxygen as it can get, to be able to breathe and push back against the forces of power. And this has actually been a good couple of weeks, particularly with the release of the International Court of Justice’s advisory opinion two weeks ago, and obviously as we look back during the past seven months, with the release of the provisional decision by the International Court of Justice back in January, its provisional measures in March and May, and of course the announcement by the International Criminal Court’s prosecutor with respect to the application for arrest warrants as well. This ought to give us hope that there is life for international law to be able to shape the future politics.

The entire Israeli occupation is now determined by the International Court of Justice

“International law by itself would not bring the liberation of Palestine. But international law combined with a separate international resolve is what we wind up needing. And people respond, and this is, I think, what’s got to be optimistic, a brief warning when I wake up, particularly during the years that I serve as Special Rapporteur for Human Rights in the Occupied Palestinian Territory, is that international law has that possibility of being able to be pushed forward, that people respond to a framing that something is unjust, and respond even more fervently to a framing that something is illegal, as the entire Israeli occupation has now been determined by the International Court of Justice.”

The Israeli settlements tool for demographic growth in East Jerusalem and the West Bank

“I’m going to be looking this at one aspect of that, which is the Israeli settlements, and how international law has interplayed with this over the last 50 years, and what indeed can be done. So obviously, as we know, the Israeli settlements, which were begun in the first weeks after the June War in 1967, usually disguised as an initiative of military army bases, is the primary Israeli tool for demographic growth, territorial control, and a claim for sovereignty in East Jerusalem and the West Bank. It is, as many scholars have said over the years, to be the single most important and visible feature of Israeli apartheid, and that’s been confirmed with, I think, a close reading of the decision by the International Court of Justice two weeks ago.”

“There are now over 300 Jewish-only settlements in the West Bank and East Jerusalem. The 2023 population, I want you to compare it to the figures I have from 2000.”

“In 2023, in the West Bank alone, there are 517,000 Israeli settlers, and you can see the growth from under 200,000 in the year 2020. In East Jerusalem, where Israel had focused its settlement activities for the first 15 to 20 years of its occupation, today there are 235,000 Israeli settlers, and there were 172,000 in the year 2000. And you look at the Golan Heights, this is the population that almost doubled, from 16,000 in the year 2000 to 29,000 today.”

“And one of the startling figures, what we call the majority decision of the International Criminal Court, was that between November 2022 and October 2023, there were 24,000 settlements, 2,000 units that are currently in various stages of the planning system within Israel. And one of the big accomplishments by the current Minister of Finance, Bezalel Smotrich, who is also Minister of Settlements within the Defense Ministry, is to eliminate three of four stages of planning and approval, such that there will be only one level of approval in order for an application for settlement units to be able to be approved. 24,000 settlement units, the policy would yield at least 200,000 new settlers.”

“If you read through the International Court of Justice decision, you will see how heavily, in fact almost exclusively, the court has relied on documentation provided by the United Nations Independent Commission on Inquiry, on the Non-Legitimacy Clause 9, or on the regular reports given. And much of this regional slide given above is from reports coming from the International Court of Justice, certainly from the High Commission on Human Rights. But if you look through the decision I produced two and a half weeks ago, you’ll see the heavy reliance that the United Nations has relied upon with respect to human documentation, talking about a number of issues, heavily influenced, including not only on the settlements, but eventually on the issue of racial discrimination and segregation and apartheid.”

“For example, it talked about the transfer of civilian population, and it noted that there was a status of Israel’s policy of providing incentives for the relocation of Israeli individuals and businesses into the West Bank, as well as looking at the industrial and agricultural development of settlers. With respect to confiscation and repossession of land, it is pointed out the extraordinary, I suspect, experience of more and more confiscation of land in the highlands of the West Bank, and more recently in Jordan Valley. And in fact, there is a very recent report that came out in the last month from Peace Now, which offers some of the most qualitative and reliable sources of information and statistics.”

Illegal settlements exploit natural resources, including water and minerals

“Going on, some of the other elements have to do with the exploitation of natural resources, including water, including minerals, and as we know, which is embedded in international law with respect to the control over one’s resources and the ability of the countries, as part of the right of self-determination, to be able to exploit our natural resources, that all of this is done on the wayside, with respect to control of Israel’s development, that Israel’s water carrier is, selling West Bank water that it has taken from a northern mountain aquifers and selling it back in fleeting prices, going back to the fact of the Palestinians, and that this was one of the important points that was relied upon by the court to be able to show the essence of racial segregation and apartheid, that there are, two different systems of laws operating issues on the West Bank. One, fulsome democratic, liberal for Israeli settlers, and the other, restrictive, minimal, violating international law, based on military law, three-plus percent of Palestinians living there.”

“At the other point, one of the reasons it comes to this issue has to do with the rising violence against Palestinians over the same period of time in the occupied West Bank. The killing of Palestinians saw by far most of it coming from the Israeli defense forces. It’s now only around 550 deaths over the last 10 months. And this is the highest number of deaths of Palestinians in the West Bank and the East Jerusalem since the 7,000 individuals over 25 years ago. So all of this, when the International Court concluded that the settlement policy is illegal.”

Transfer of population to occupied areas is war crime

“We know from the 1949 Convention, this was asserted. The occupying power in the court transferred parts of almost a million occupations in the territory of the Netherlands. This was put in there because of the incentive that arose during wars prior to the end of the Second World War to allow countries to be able to expand their territories and its territorial belonging which was amassed by other countries and then populated under civilian occupation in order to make the return of land possible.”

“And there is a rationale by Jean Pictet, in 1968, that union conventions were designed to prevent a crisis of international and systematical war by certain powers, which transferred portions of their own population to occupied territories for political and racial reasons or, in other words, they came and colonized these territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.”

“It’s a violation, a plagued violation. I’ll say that even in the international border crisis decisions a few weeks ago was the question of the war crimes.”

“The last time that the Security Council passed a resolution critical to the general on any matter was in December of 2016, in the last three weeks of the Obama administration, when they passed a resolution 2334, and it became the form of action that the Israeli government’s attempt to reflect their violation of international law. It reiterates the demand in over 40 years that Israel de-engage with its own settlement activity.”

“It calls upon all states, as it did in 1980, to distinguish the relevant means in between territories of the state of Israel and their particular block types. Just let me give you a couple of statistics with respect to this. When the UN Resolution 465 was passed in March of 1980, and I’m using only West Bank settlement figures, they’re easier to view than any of that.”

The number of Israeli settlers jumped from 12,500 in 1980 to 370,000 in 2023 

“Does anybody know, as a rough guess, how many settlers were in the West Bank in 1980?

There were 12,500 settlers in the West Bank. By 1993, when the Oslo Accords were signed, there were 116,000 settlers in the West Bank. By about the year 2000, when the Camp David talks were conducted and then failed, there were 198,000 settlers in the West Bank. By 2014, when the last of the serious peace negotiations were conducted under John Kerry and then failed, there were 370,000 Israeli settlers in the West Bank.”

“In 2003, as I said, there were no settlers in the West Bank. Back in 1936, David Ben-Gurion said, and remember, 1936 was at the height of the integration of European Jews fleeing the specter of European fascism with most of the doors to the West, Russia’s door, and then North American foes. And David Ben-Gurion said, what error could not do this in the past? And we realize that 60,000 European Jewish immigrants a year who leave in 2009 means no error saved.”

“Can we not see today, almost 90 years later, that having 3 quarters of a million Israeli settlers in each Jerusalem in the West Bank, with a growth of somewhere between 25,000 and 35,000 settlers in a year, net population, means no domestic and self-determination with this group. So let’s look at this last piece here. I’m going to read this just a few pages before we send everything else to the team.”

“There are three questions at the end of it. They want the Security Council one at the beginning of the evening. And I request that the Secretary General of the United Nations report to the Security Council every three months on the implementation of the provisions of this resolution, most importantly of which is a demand that the doors immediately cease and completely cease all settlement activity. And that has been done every three months from the proper beginning.”

“There have been Security Council Generals, General Secretary, Secretary General, has delivered to the Security Council regarding Israel’s compliance with the 2354 regarding settlement activities. The March 2024 report, which is the 29th report, is the most recent one that I’ve applied to each of them online. It says the resolution calls on Israel to immediately and completely cease all settlement activity in the occupied lands, including Israel. And it would respect the new obligations. Nevertheless, settlement activities are continued and intensified. The other long warning I thought I wanted to give for each of these security reports, no such threats are created during the reported period as settlement activities continue.”

“So we have, if you like, this passive, and this specific, almost disembodied voice coming from the UN Secretary General, or which, of course, is in a digital pattern, tailored to the security council, this remains to obey resolution 2354.”

“And I won’t take you through it, but in the 1921 report, especially going forward to the UN Security Council, I applied this variant test that the periphery committee for the ICC had developed and found that Israel had violated all three aspects. And now, the definition of the authority willingness of those in official positions of power is now being enwired, who will say that the trade settlements are a form of war crime.”

“I think is a very roosting argument, such transfer is not a form of war crime that may engage individual criminal responsibility of those involved. And then, again, we’re being introduced several times to the International Court of Justice, where it’s said, and after going through an extensive review of the ICC, which is a settlement inquiry, with respect to digital settlement policy, it affirms, and in the light of the law, the ICC reaffirms that the trade settlements in the West Bank, in Jerusalem, and in the region associated with them have an established pattern of maintaining violation of international law.”

Accountability is a missing component with respect to international law

“On the question of accountability, accountability is a missing component with respect to international law. International law, without international resolve, generally emerges from below to be able to enforce the application of existing international law. And I’m very happy with respect to these.”

“These are three of the main components with respect to international law and accountability. First of all, with respect to international and international law, common argument, common law, all four of them says that the highest common comparison is with respect to security.”

“The International Committee of the Red Cross, the guardian of the Geneva Convention, has said, to ensure respect is not simply words on paper, this is a solemn, legal, binding, commitment and obligation. The states have to require the approval of international law means any serious breach of international law, and those states require international law to assist in the breach of international law.

And finally, I want you to keep Article 25 of the Charter of the United Nations in mind that the members of the United Nations agree to accept and to carry out the decisions of the United Nations.”

ASIA

Syria will not follow Afghanistan’s Taliban model of governance

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In an astonishing statement, Ahmed Shará, also known as Abu Mohamad Jolani, the leader of the Hayat Tahrir al-Sham (HTS) said that he will allow the girls to go to schools and will not turn Syria like Afghanistan under the rule of the Taliban.

Jolani, the de facto ruler of Syria, said that he will distance himself from the Taliban’s strict policies on women’s rights, and said that Syria will not follow the Taliban’s mode of governance.  

Jolani, who brought down the government of Bashar al-Assad and also widely welcomed by the Taliban, said that he believes in the education of women and girls and will not make Syria like Afghanistan.

“Syria is a diverse society with various ideas, unlike Afghanistan, which is more tribal. The Afghan model cannot be applied here,” Jolani told a BBC reporter.

Jolani says that Syria is a diverse society with various ideas, unlike Afghanistan, which is more tribal.

Jolani’s comment came when the Taliban congratulated the HTS-led victory by Jolani over Assad’s regime after years of fighting. The Afghan Foreign Ministry celebrated Jolani’s victory through a statement and hoped Jolani can bring peace and stability in the country.

“It is hoped that the power transition process is advanced in a manner that lays the foundation of a sovereign and serve-oriented Islamic government in the line with the aspiration of the Syrian people; that unifies the entire population without discrimination and retribution through adoption of a general assembly; and a positive foreign policy with world countries the safeguard Syria from a threat of negative rivalries of foreign actors and creates conditions for the return of millions of refugees,” the statement by Taliban Foreign Ministry.

However, Jolan’s position on the rights of women and girls is in great contrast with the current view of the Taliban leadership. Women and girls have been banned from education and work since the return of the Taliban in August 2021, following the collapse of the Republic System and withdrawal of the US troops from Afghanistan. Girls and women are even banned from medical institutions and visiting public spaces.

Jolani says he has a plan to create a government based institution and a council chosen by the people. 

The situation got worse when the Taliban’s Ministry for the Promotion of Virtue and Prevention of Vice called women’s voices “immodest” compounding their exclusion from public life. This year, it has been marked as three years since girls were banned from pursuing education over sixth grade. Besides that, on December 20, 2022, the Taliban’s Ministry of Higher Education announced that women would be barred from attending public and private universities.    

In an interview with CNN, Jolani said that he has a plan to create a government based on institutions and a “council chosen by the people.”

“When we talk about objectives, the goal of the revolution remains the overthrow of this regime. It is our right to use all available means to achieve that goal,” said Jolani.

“The seeds of the regime’s defeat have always been within it… the Iranians attempted to revive the regime, buying it time, and later the Russians also tried to prop it up. But the truth remains: this regime is dead.”

Moreover, he also said the Syrian people are the “rightful owners” of the country after the ouster of Assad, and declared a “new history” has been written for the entire Middle East.

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U.S. officials to meet with HTS and Jolani in Damascus

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In a significant diplomatic development, U.S. President Joe Biden has authorized senior American diplomats to engage directly with Abu Mohammed al-Jolani, the leader of Hayat Tahrir al-Sham (HTS). This marks the first formal meeting between U.S. officials and HTS leadership since the group’s overthrow of Bashar al-Assad in Syria earlier this month. Despite HTS’s pivotal role in the regime’s fall, the U.S. continues to classify it as a terrorist organization.

The delegation is led by Barbara Leaf, the State Department’s senior Middle East official. She is joined by Roger Carstens, the U.S. Special Envoy for Hostage Affairs, and Daniel Rubenstein, a veteran diplomat recalled from retirement to spearhead U.S. diplomatic efforts in Syria post-Assad. Rubenstein, previously stationed at the U.S. Embassy in Baghdad, is now tasked with navigating Syria’s complex political landscape following the collapse of the Assad regime.

The meeting, taking place on December 20, represents the first direct, face-to-face dialogue between the U.S., and HTS leaders. This engagement comes as HTS appeals to Western nations to lift longstanding sanctions against Syria. U.S. officials have indicated that lifting the ‘terrorist’ designation and easing sanctions could be possible if HTS demonstrates a commitment to inclusive governance and sustained stability.

U.S. Secretary of State Antony Blinken emphasized the importance of HTS addressing critical security concerns, including chemical weapons and the lingering presence of groups like Daesh (ISIS). Speaking in New York, Blinken stated, “If you don’t want this isolation, then there are things you need to do to move the country forward in an inclusive way.”

The U.S. visit follows similar diplomatic engagements in Damascus this week by officials from France, Germany, and Britain, highlighting a coordinated Western effort to shape Syria’s post-Assad future. Speaking to Bloomberg, Blinken reiterated the necessity of direct dialogue in fostering stability.

Washington’s discussions with HTS also aim to expedite efforts to locate Austin Tice, an American journalist kidnapped in Damascus in 2012. Despite HTS’s designation as a terrorist entity, the U.S. maintains that communication is permissible under its legal framework, provided no material support is extended.

Simultaneously, the Pentagon announced an increase in U.S. troop deployments to northeast Syria, doubling the number from 900 to approximately 2,000. Major General Pat Ryder, Pentagon spokesperson, clarified that these troops were already present before Assad’s fall, underscoring the ongoing mission to counter Daesh.

Jonathan Panikoff, a former senior intelligence official now at the Atlantic Council, warned of potential consequences if the U.S. fails to assert influence in Syria. “If Washington and its allies do not actively work to ensure that the leaders and groups in Syria align with U.S. interests, the vacuum in Syria will almost certainly be filled by a country or group hostile to our interests and those of our allies,” Panikoff told the Financial Times.

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Migration and identity crisis

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Whether we like it or not, immigration is the reality of our world today. This fact, in addition to the fact that it can become an opportunity with proper individual and organizational management, also has its own challenges. Among other things, one of the challenges that arise for immigrant communities and the immigrant generation is the identity crisis. The crisis of identity is a broad and multidimensional debate, but with a simpler view, this crisis among the second and third generation of immigrants is caused by a duality – on the one hand, they inevitably have to reject the relatively strict traditional-religious behavior of their parents, and on the other hand, they cannot fully absorb the secular and civil values ​​of the host society.

At the same time, these second and third generation immigrants need a series of rituals, education and ceremonies in which they can feel themselves and find a sense of belonging. Because they have rejected the worn-out advice of their parents, they lose their respect, attention and empathy.

But on the other hand, they are not respected outside when they face the more important and larger part, that is, the host society. That is, because they cannot be successfully absorbed into the host society, they do not attract attention and respect from there and are isolated. While as human beings they need attention and respect from others – to be someone for themselves and to be known and honored with the title they like. If we want to explain the identity problem in simple language, this is it. Of course, this is not a general case. There are so many young people who are successfully recruited and busy with their daily work and are in positive interaction with institutions and human groups in their field of work every day. This is a huge success in terms of integration. But naturally, there are those whose absorption process in the host society is disturbed due to various reasons.

They are thirsty for attention and seeking respect because of the aforementioned emptiness. In this case, they are waiting hard for someone, an institution or a group to be found under its order to become meaningful signifiers even at the cost of obeying or blindly following. Because following also reminds at least that they are human and some people need to follow them.

Immigrants want to be respected by the host countries as it strengthens the sense of belonging to the community

Due to this need, many addresses with religious, ethnic and cultural names have been created among immigrants and usually they all offer some kind of identity product. Because they know that the immigrant community needs things to remind them that they belong to a certain nation, race, or religion in times of identity crisis. They have a special past and history, and based on their ancestral religion, they will be treated in a special way in heaven.

Also, in this world, angels always have a good opinion of them. When they feel that they have been rejected from the reality of society due to the difficulties of immigration, it is natural for them to take refuge in imaginary sources and ask for respect and attention from there.

This seemingly makes their existence meaningful and strengthens their sense of belonging to the same group, but on the other hand, it further separates them from the main body of the host society. This separation is not only deep, but sometimes becomes a factor resistant to assimilation and integration.

Efforts should be made so that the situation does not reach a point where that vacuum is formed or reaches a critical level. The way to avoid this gap is absorption and integration. Being absorbed is not easy for immigrants; Therefore, a practical solution should be considered for it. For this, it is good to ask: What helps us to become like the society or people of our host country or second home? What do they have? What do we have in common?

In response, it should be said: Our first and most important contribution is in “citizenship”. That we are citizens of a certain country and being a citizen requires commitment and sacrifice. If we reach this civic understanding that citizenship is a principle prior to other elements of identity such as religion, religion, language and ethnicity, I think we have traveled an important part of the way. It is the only umbrella that can cover everyone equally, so that no one feels left out.

The good thing about this umbrella is that in order to join it, no immigrant needs to become a Christian first to become a citizen of a certain country, or to be white first to qualify for citizenship. It is enough that they respect the rights and freedoms of the members of the society.

This is the result of the maturity of human history, which is steered by Western civilization, and now Western countries also consider themselves obliged to comply with it.

Of course, this has not always been the case in the West. For example, more than half a century ago in Germany, Jews were legally ineligible for German citizenship as long as they insisted on their Jewishness. The granting of citizenship, which is actually the granting of the right to live again, regardless of religion, ethnicity and region, based only on being “human”, is an unprecedented achievement in human history, which is implemented in first world countries.

The identity loss and wandering shows itself in various forms.

The phenomenon of migration and the lack of compatibility of new arrivals with the new environment is not a new thing. For example, after the industrial revolution in the 19th century, these same countries faced the problem of identity crisis. Due to the impact of the industrial revolution, people suddenly moved from the surrounding areas to the cities, and those who had just arrived in the city had exactly the same situation as today’s immigrants, who are thrown from the third world countries to the center of the largest cities of the first world countries, and it is impossible not to get lost.

This identity loss and wandering shows itself in various forms. The problem of internal migration in Western countries in the 18th and 19th centuries, caused by the mass migration of rural people to the cities, was solved by gradual integration. Today, the challenge of immigration to these countries can only be managed with sustainable and intelligent integration.

But what is important is the implementation of this integration in the healthiest way and with the least cost for the host society and the immigrants. Integration is inevitable, it just needs to be managed well. If integration does not take place, urban life with its own nature and the whole issue of government-nationality and national identity of these countries will face danger and no country likes this.

One can think about those who just arrived in the city two centuries ago, how it was hard for them to lose their local dialects and customs and religious and regional traditions, but now their current generations who were born in the city, grew up and educated in the city, are basically urban and they do not have the accent of their great-grandfathers nor their customs. They are either from London or from Manchester or from Birmingham and all of them are English and they have nothing to do with their villages.

Current immigrants also have to go through such a process. That is, they should be absorbed in the urban life and civic values ​​and nationality of the host countries. As Fukuyama, a contemporary political scientist, says “although with the victory of the Iranian revolution in 1979 and the Salafist movement in Saudi Arabia in the same years, the assumption that Muslim immigrants in Western countries should maintain their independent religious institutions was strengthened.”

Several decades of bad experiences of some migrants in West have led to the creation of far-right parties and their stance against immigrant

Even today, this strategy is being implemented by the Islamic Republic in all parts of the world under various titles under the guise of religion and under the name of religious freedom. But the result of creating an island and intervening and demanding the isolation of same-religious groups from the rest of the host society is creating a rift and the illusion of a dual identity, which, if it becomes acute, can even create security problems for the host society.

From the point of view of isolated groups and individuals, citizenship does not have a special meaning, nor does it bring duties and obligations. According to them, religion or ethnicity is the factor of unification, not citizenship. The occurrence of religiously motivated terrorist attacks in Western countries, as well as the joining of second and third generation Muslim immigrants from Western countries to extremist groups in the Middle East, can be understood under this logic.

Several decades of bad experiences of Muslims in Western countries have led to the creation of far-right parties and their stance against immigrants and Muslims in those countries. The emergence of populist nationalism is due to the feeling of danger that immigrants have taken their identity from them and they don’t want to be confused with immigrants.

That is, in the host countries, which are mostly western, there is also a group that does not like immigrants, especially Muslim immigrants, to be integrated into them. According to them, Muslim immigrants should not pollute their culture and identity – so to speak.

But again, due to the blessing of the secular age and the secular government, their words are not taken into account, and they are willing to give citizenship to Muslims and follow the policy of multiculturalism, with all the possible dangers and sometimes bad memories of some of them – that one day maybe the important principle of “citizenship” will be institutionalized in them.

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