Saturday, December 5, 2009

Still Profiting from Terror.

 

by  Barry Rubin

 

Let me start with a true story. In 1984 I founded what was just about the first program on terrorism in the United States, at Johns Hopkins University School of Advanced International Studies (SAIS) with a small grant from the Ford Foundation. We brought together journalists, officials, and academics to discuss the threat of terrorism to the United States and U.S. policies. I edited three books on terrorist groups.

After the grant ended I went to the Ford Foundation office in New York to discuss renewing it. The grants’ officer had made up his mind before I stepped into his room. “We aren’t going to renew the grant,” he said, “because we don’t believe terrorism will be a problem in the future.”

This experience came into my mind as I was conversing with a leading world expert on terrorism who asked me an interesting question: Has state sponsorship of terrorism declined nowadays? It was a very good question indeed.

A superficial examination would say that the answer is “Yes.” But a more careful look suggests that this is illusory in two respects. First, the state sponsorship that is continuing is largely overlooked. Second, terrorism has gone big-time and mainstream.

In the old days, a wide range of countries systematically supported terrorism internationally. These particularly included Cuba, the Soviet bloc, Sudan, Syria, Iraq, Libya, Pakistan and North Korea. Iran and Afghanistan entered the field after Islamist revolutions there. Several of these countries were Communist, and with the fall of the Soviet empire in 1991 their involvement declined. With the overthrow of Saddam Hussein in 2003, Iraq dropped out. The same U.S. invasion of Iraq that brought down Saddam also intimidated Libya, that most wild-eyed of dictatorships, into caution.

Then, too, there arose Usama bin Ladin and the many radical Islamist groups that formed part of his organization. The word was that terrorism had been privatized, backed by the bin Ladin family wealth rather than the treasury of any specific country. Moreover, the PLO largely transformed itself into the Palestinian Authority, which negotiated with Israel and looked to the United States as its main aid-giver. State sponsorship, it appears, has gone out of fashion.

Under intensive pressure from Turkey, Syria expelled the Kurdish terrorist PKK. Bin Ladin voluntarily left Sudan, while he and his Taliban sponsors were on the run after the post-9/11 U.S. invasion of Afghanistan. Cuba and North Korea quieted down, in part because they felt so much on the offensive and overt sponsorship of major terrorist attacks seemed too risky with the United States waging a War on Terrorism.

And yet while there has been a decline in state sponsorship in many ways, appearances are also deceiving and even that lull may be partly illusory. Three countries stand out today as especially energetic: Iran, Syria, and Pakistan. While stating that as a fact is not so surprising, the consequences of this sponsorship has been strongly downplayed by the media and Western governments for strategic or diplomatic reasons. After all, to admit and define a problem is to create pressure for doing something about it. In addition, the idea that al-Qaida is without state sponsorship has become a dogma which resists evidence to the contrary.

Let’s examine the issue in detail starting with Pakistan. There is a huge amount of evidence that Pakistan sponsors the Taliban and other terrorist groups in Afghanistan as well as those attacking India. The organizations which carried out the bloody Mumbai attack in 2008 and much terrorism in disputed Indian Kashmir, for example, operate freely in Pakistan and it is hard to believe that Pakistani military intelligence is not well appraised of each detail of their plans. Indeed, it funds and protects them.

Why, then, is not this seen globally as a major instance of state sponsorship of terrorism? Because Pakistan is needed by the United States to conduct operations in and near Afghanistan. Thus, Pakistan is regarded as a U.S. ally, receives massive funding, and little criticism. The Indian government cannot retaliate no matter how great is the provocation since it lacks international support and Pakistan is a nuclear power. Thus, Pakistan has become a state sponsorship of terrorism which is immune to pressure or punishment.

As for Syria, it is an active state sponsor of terrorism on several fronts. In recent years, it was deeply involved in terrorist attacks in Lebanon against moderates who advocated the expulsion of Syrian influence and a more independent policy for their own country. In conjunction with Iran and Hizballah, assassinations were carried out that included the murder of former Lebanese Prime Minister Rafiq Hariri. An international tribunal was set up to investigate this responsibility but despite leaks that it found involvement by the highest elements in the Syrian government, the West has not pushed for the culmination of the tribunal and Lebanon has been intimidated out of doing so.

At the same time, Syria and Iran backed two major terrorist groups, Hamas and Hizballah, in attacking Israel. They are headquartered in Damascus and while in no way purely puppets or instruments of their two sponsors certainly pay close attention to their wishes. Their weapons and budget are largely supplied from Tehran and Damascus. Yet for a variety of reasons, ranging from Israeli policy to U.S. engagement efforts, Syria does not pay much of a penalty for its behavior.

Perhaps more shocking is the fact that Syria is waging a war of terrorism against America in Iraq and the group it is sponsoring there is al-Qaida. Thus, it is an open secret that Syria is now allied with al-Qaida, the group that carried out the September 11 attacks on America, yet pointing out the logical bottom line seems to many people as some far-out or silly notion. Moreover, terrorists trained, armed, financed, and given safe haven in Syria are killing American soldiers and civilians in Iraq. Yet the U.S. government won’t even back Iraqi complaints and demands for action on this issue.

Lip service is given to Iran’s being the world’s leading sponsor of terrorism but many argue that this activity has declined in recent years. To do so, however, they must leave out Iranian operations in regard to Hamas, Hizballah, and insurgents in Iraq, which include direct attacks (often through Iranian-made roadside bombs) against U.S. troops.

The current defense minister of Iran is a wanted terrorist for his involvement in the bloody attack on the Jewish center in Buenos Aires, Argentina, while he and his predecessor, then stationed in Lebanon, were involved in the attack on the U.S. Marine barracks in Beirut in 1984 which killed 241 Americans. This last point has not even been mentioned by any U.S. official. Few Americans know that a U.S. court found Iranian involvement in the terrorist attack on American military personnel in the Khobar Towers in Saudi Arabia.

Since the emphasis now is on conciliation rather than confrontation, Western governments find it convenient to forget past and ignore present-day state sponsorship of terrorism.

All of this leads to the second point: the mainstreaming of terrorism. Hamas now rules the Gaza Strip; Hizballah has ministers in the Lebanese government. Both have run in elections. There are many in the West who argues—though this has nothing to do with reality—that these groups each have a military wing (bad) and a political wing (good). There is tremendous pressure in Europe, especially Britain, to engage with the “good” Hizballah.

Indeed, the advisor to President Barack Obama on terrorism stated that Hizballah couldn’t be a terrorist organization because its membership included lawyers. Further afield, the Sri Lankan terrorist group, the Tamil Tigers, has attained respectability, notably in Canada. The Tigers’ representative in the United States, V. Rudrakumaran, is himself a lawyer. In Europe, the PKK runs a television station, while Hizballah’s al-Manar television is shown by many cable networks—though barred from others—around the world. With the Goldstone Commission report, the UN has been transformed into a propaganda organ for Hamas, despite the report’s minor criticisms of that group which did not appear in the General Assembly’s resolution bashing Israel.

Thus, state sponsorship has been airbrushed out for political reasons, while terrorist groups have reinvented themselves as political parties without abandoning their ideology or terrorism. Since terrorism has proven to be so profitable and sponsorship so low cost, it is reasonable to worry that both phenomena will increase in future and that the current period will prove to be a lull and not an end. Unfortunately, it is a lull during which the West is helping to show that these are low-risk, high-yield policies for radical regimes.

Barry Rubin

Copyright - Original materials copyright (c) by the authors.

 

Friday, December 4, 2009

The Illegal-Settlements Myth. Part I

 

 by David M. Phillips

1st part of 2

The conviction that Jewish settlements in the West Bank are illegal is now so commonly accepted, it hardly seems as though the matter is even open for discussion. But it is. Decades of argument about the issue have obscured the complex nature of the specific legal question about which a supposedly overwhelming verdict of guilty has been rendered against settlement policy. There can be no doubt that this avalanche of negative opinion has been deeply influenced by the settlements' unpopularity around the world and even within Israel itself. Yet, while one may debate the wisdom of Israeli settlements, the idea that they are imprudent is quite different from branding them as illegal. Indeed, the analysis underlying the conclusion that the settlements violate international law depends entirely on an acceptance of the Palestinian narrative that the West Bank is "Arab" land. Followed to its logical conclusion-as some have done-this narrative precludes the legitimacy of Israel itself.

These arguments date back to the aftermath of the Six-Day War. When Israel went into battle in June 1967, its objective was clear: to remove the Arab military threat to its existence. Following its victory, the Jewish state faced a new challenge: what to do with the territorial fruits of that triumph. While many Israelis assumed that the overwhelming nature of their victory would shock the Arab world into coming to terms with their legitimacy and making peace, they would soon be disabused of this belief. At the end of August 1967, the heads of eight countries, including Egypt, Syria, and Jordan (all of which lost land as the result of their failed policy of confrontation with Israel), met at a summit in Khartoum, Sudan, and agreed to the three principles that were to guide the Arab world's postwar stands: no peace with Israel, no recognition of Israel, and no negotiations with Israel. Though many Israelis hoped to trade most if not all the conquered lands for peace, they would have no takers. This set the stage for decades of their nation's control of these territories.

The attachment of Israelis to the newly unified city of Jerusalem led to its quick annexation, and Jewish neighborhoods were planted on its flanks in the hope that this would render unification irrevocable. A similar motivation for returning Jewish life to the West Bank, the place where Jewish history began-albeit one that did not reflect the same strong consensus as that which underpinned the drive to hold on to Jerusalem-led to the fitful process that, over the course of the next several decades, produced numerous Jewish settlements throughout this area for a variety of reasons, including strategic, historical and/or religious considerations. In contrast, settlements created by Israel in the Egyptian Sinai or the Syrian Golan were primarily based initially on the strategic value of the terrain.

Over the course of the years to come, there was little dispute about Egypt's sovereign right to the Sinai, and it was eventually returned after Nasser's successor Anwar Sadat broke the Arab consensus and made peace with Israel. Though the rulers of Syria have, to date, preferred the continuance of belligerency to a similar decision to end the conflict, the question of their right to the return of the Golan in the event of peace seems to hinge more on the nature of the regime in Damascus than any dispute about the provenance of Syria's title to the land.

The question of the legal status of the West Bank, as well as Jerusalem, is not so easily resolved. To understand why this is the case, we must first revisit the history of the region in the 20th century.

Though routinely referred to nowadays as "Palestinian" land, at no point in history has Jerusalem or the West Bank been under Palestinian Arab sovereignty in any sense of the term. For several hundred years leading up to World War I, all of Israel, the Kingdom of Jordan, and the putative state of Palestine were merely provinces of the Ottoman Empire. After British-led Allied troops routed the Turks from the country in 1917-18, the League of Nations blessed Britain's occupation with a document that gave the British conditional control granted under a mandate. It empowered Britain to facilitate the creation of a "Jewish National Home" while respecting the rights of the native Arab population. British Colonial Secretary Winston Churchill later partitioned the mandate in 1922 and gave the East Bank of the Jordan to his country's Hashemite Arab allies, who created the Kingdom of Jordan there under British tutelage.

Following World War II, the League of Nations' successor, the United Nations, voted in November 1947 to partition the remaining portion of the land into Arab and Jewish states. While the Jews accepted partition, the Arabs did not, and after the British decamped in May 1948, Jordan joined with four other Arab countries to invade the fledgling Jewish state on the first day of its existence. Though Israel survived the onslaught, the fighting left the Jordanians in control of what would come to be known as the West Bank as well as approximately half of Jerusalem, including the Old City. Those Jewish communities in the West Bank that had existed prior to the Arab invasion were demolished, as was the Jewish quarter of the Old City of Jerusalem.

After the cease-fire that ended Israel's War of Independence in 1948, Jordan annexed both the West Bank and East Jerusalem. But, as was the case when Israel annexed those same parts of the ancient city that it would win back 19 years later, the world largely ignored this attempt to legitimize Jordan's presence. Only Jordan's allies Britain and Pakistan recognized its claims of sovereignty. After King Hussein's disastrous decision to ally himself with Egypt's Nasser during the prelude to June 1967, Jordan was evicted from the lands it had won in 1948.

This left open the question of the sovereign authority over the West Bank. The legal vacuum in which Israel operated in the West Bank after 1967 was exacerbated by Jordan's subsequent stubborn refusal to engage in talks about the future of these territories. King Hussein was initially deterred from dealing with the issue by the three "no's" of Khartoum. Soon enough, he was taught a real-world lesson by the Palestine Liberation Organization, which fomented a bloody civil war against him and his regime in 1970. With the open support of Israel, Hussein survived that threat to his throne, but his desire to reduce rather than enlarge the Palestinian population in his kingdom ultimately led him to disavow any further claim to the lands he had lost in 1967. Eventually, this stance was formalized on July 31, 1988.

Thus, if the charge that Israel's hold on the territories is illegal is based on the charge of theft from its previous owners, Jordan's own illegitimacy on matters of legal title and its subsequent withdrawal from the fray makes that legal case a losing one. Well before Jordan's renunciation, Eugene Rostow, former dean of Yale Law School and undersecretary of state for political affairs in 1967 during the Six-Day War, argued that the West Bank should be considered "unallocated territory," once part of the Ottoman Empire. From this perspective, Israel, rather than simply "a belligerent occupant," had the status of a "claimant to the territory."

To Rostow, "Jews have a right to settle in it under the Mandate," a right he declared to be "unchallengeable as a matter of law." In accord with these views, Israel has historically characterized the West Bank as "disputed territory" (although some senior government officials have more recently begun to use the term "occupied territory").

Because neither Great Britain, as the former trustee under the League of Nations mandate, nor the since deceased Ottoman Empire-the former sovereigns prior to the Jordanians-is desirous or capable of standing up as the injured party to put Israel in the dock, we must therefore ask: On what points of law does the case against Israel stand?

_____________



International-law arguments against the settlements have rested primarily upon two sources. First are the 1907 Hague Regulations, whose provisions are primarily designed to protect the interests of a temporarily ousted sovereign in the context of a short-term occupation. Second is the 1949 Fourth Geneva Convention, the first international agreement designed specifically to protect civilians during wartime.

While Israel was not and is not a party to the Hague Regulations, the Israeli Supreme Court has generally regarded its provisions as part of customary international law (that is, law generally observed by nations even if they have not signed an international agreement to that effect) and hence applicable to Israel. The regulations are transparently geared toward short-term occupations during which a peace treaty is negotiated between the victorious and defeated nations. The "no's" of Khartoum signaled that there would be no quick negotiations.

Nonetheless, Israel established and maintains a military administration overseeing the West Bank in accordance with the Hague Regulations, probably the only military power since World War II other than the United States (in Iraq) that has done so. For example, consistent with Article 43 of the Regulations, which calls on the occupant to "respect, . . . unless absolutely prevented, the laws in force in the country," Israel has for the most part continued to follow Jordanian law in the West Bank, despite its position that Jordan itself had illegally occupied it. Israel's stance has been criticized as contradictory, but general continuance of Jordanian law can be justified on grounds of legal stability and long-term reliance reflected in most legal systems, including international law.

Article 46 of the Hague Regulations bars an occupying power from confiscating private property. And it is on this point that the loudest cries against the settlements have been based. Israel did requisition land from private Arab owners to establish some early settlements, but requisitioning differs from confiscation (compensation is paid for use of the land), and the establishment of these settlements was based on military necessity. In a 1979 case, Ayyub v. Minister of Defense, the Israeli Supreme Court considered whether military authorities could requisition private property for a civilian settlement, Beth El, on proof of military necessity. The theoretical and, in that specific case, actual answers were affirmative. But in another seminal decision the same year, Dwaikat v. Israel, known as the Elon Moreh case, the court more deeply explored the definition of military necessity and rejected the tendered evidence in that case because the military had only later acquiesced in the establishment of the Elon Moreh settlement by its inhabitants. The court's decision effectively precluded further requisitioning of Palestinian privately held land for civilian settlements.

After the Elon Moreh case, all Israeli settlements legally authorized by the Israeli Military Administration (a category that, by definition, excludes "illegal outposts" constructed without prior authorization or subsequent acceptance) have been constructed either on lands that Israel characterizes as state-owned or "public" or, in a small minority of cases, on land purchased by Jews from Arabs after 1967. The term "public land" includes uncultivated rural land not registered in anyone's name and land owned by absentee owners, both categories of public land under Jordanian and Ottoman law. Inversely, the term excludes land registered in the name of someone other than an absentee owner (regardless of whether the land is presently cultivated), land to which a title deed exists (even if the deed is unregistered), and land held by prescriptive use. The last stipulation requires continuous use of the land for a period of 10 years.

Israel's characterization of certain lands as "state" or "public" has provoked considerable controversy. In one of the most detailed and cited critiques, B'Tselem, the Israeli human-rights group, concedes that 90 percent of the settlements have been established on what is nominally "state" land but argues that approximately 40 percent of the West Bank now falls within that category. That would represent a vast expansion of the 16 percent of the West Bank that had been considered public under Jordanian control.

As B'Tselem acknowledges, however, the vast majority of this land is in the Jordan Valley, which, with the primary exception of the city of Jericho, was barely populated by Palestinian Arabs prior to 1967 (which explains why such land was both unregistered and uncultivated). The percentage may also be on the high side because of the inclusion of certain Jerusalem neighborhoods in B'Tselem's calculations. Regardless of the gross percentage, according to B'Tselem's own statistics, only approximately 5 percent of the West Bank is within settlement "municipal boundaries," and a much, much smaller percentage of land, 1.7 percent, is developed.

One of B'Tselem's most frequently cited publications argues that Ma'aleh Adumim, the largest Israeli settlement on the West Bank, several kilometers to the east of Jerusalem, sits on territory taken from five Palestinian Arab villages and therefore amounts to an expropriation. But because the villagers lack registered title or even unregistered deeds, B'Tselem argues that the nomadic Jahalin Bedouin, who intermittently camp and graze their livestock on land to the east of Jerusalem going down to the Dead Sea, have effectively earned the right of title to the land because of their prescriptive use.

Perhaps. But it is far from clear how a Bedouin right to the land has anything to do with the legal claim of Palestinian villagers 60 years earlier. B'Tselem offers this rather astonishing argument: "They grazed on village land in accordance with lease agreements (at times symbolic) with the landowners-including landowners from the villages of Abu Dis and al'Izariyyeh." At times symbolic!

In other words, only Palestinian Arab villages may be constructed and expanded on the land because Bedouin have occasionally grazed their flocks thereon pursuant to the implied consent of Palestinian villagers. But those villagers only have a right to the land because of its use by the Bedouin!

The sophistry here masks a deeper issue. Aside from its circularity, B'Tselem's argument equates whatever rights Bedouin may have with the rights of sedentary Arab villages on the outskirts of Jerusalem. The only reason for such an equation is that both are Arabs and not Jews. B'Tselem's assertion that the land belongs to these villages collapses into the contention that only Arabs, not Jews, have the right to own and use these lands.

 

 

David M. Phillips
Copyright - Original materials copyright (c) by the authors.

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The Illegal-Settlements Myth. Part II

 

 by David M. Phillips

2nd part of 2

 

Settlement opponents more frequently cite the Fourth Geneva Convention these days for their legal arguments. They specifically charge that the settlements violate Article 49(6), which states: "The occupying power shall not deport or transfer parts of its own civilian population into territories it occupies."

Frequently, this sentence is cited as if its meaning is transparent and its application to the establishment of Israeli settlements beyond dispute. Neither is the case.

To settlement opponents, the word "transfer" in Article 49(6) connotes that any transfer of the occupying power's civilian population, voluntary or involuntary, is prohibited. However, the first paragraph of Article 49 complicates that case. It reads: "Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive." Unquestionably, any forcible transfer of populations is illegal. But what about voluntary movements with the antecedent permission or subsequent acquiescence by the occupant?

Even settlement opponents concede that many settlements closest to Palestinian population areas, on the central mountain range of the West Bank, were built without government permission and often contrary to governmental policy; their continued existence forced the government to recognize the settlement as an existing fact. Given this history, it is questionable to claim that Israel "transferred" those settlers.

The response of settlement critics is that certain tax subsidies and other benefits conferred by the Israeli government or the World Zionist Organization that may have encouraged Jews to settle in the West Bank constructively amounts to a "transfer." This interpretation would have greater traction under a l977 protocol to the Geneva Convention or under the Treaty of Rome, which established the International Criminal Court, but Israel is a signatory to neither (both covenants were heavily influenced by anti-Israel nongovernmental organizations and the PLO).

To the extent that a violation of Article 49(6) depends upon the distinction between the voluntary and involuntary movement of people, the inclusion of "forcible" in Article 49(1) but not in 49(6) makes a different interpretation not only plausible but more credible. It's a matter of simple grammar that when similar language is used in several different paragraphs of the same provision, modifying language is omitted in later paragraphs because the modifier is understood. To Julius Stone, an international-law scholar, "the word 'transfer' [in 49(6)] in itself implies that the movement is not voluntary on the part of the persons concerned, but a magisterial act of the state concerned."

To understand the phraseology used in Article 49(1), "individual or mass forcible transfers," as well as one plausible origin of Article 49(6), some background is necessary.

According to Stone, discussions at the 1949 Geneva Diplomatic Conference "were dominated" by a common horror of the evils caused by the recent World War and a determination to lessen the sufferings of war victims." The various nations' delegates considered a draft of the convention produced at a conference of the Red Cross Societies held in Stockholm during August 1948. Final Article 49 was the renumbered and revised successor to Article 45 of the Stockholm Draft.

At a legal subcommittee meeting at Stockholm seemingly attended by fewer than 10 active participants, a Danish Jew named Georg Cohn proposed the sentence, albeit with a wider scope, that became Article 49(6). Cohn's initial sentence, in French, would have prohibited an occupying power from deporting or transferring a "part of its own inhabitants or the inhabitants of another territory which it occupies" into the occupied territory.

According to Cohn's own report to the Danish foreign ministry, his language was directed at an event the aspects of which were little known outside Scandinavia. In the waning days of World War II, as the Russian military advanced westward through the Baltic states and the Germans retreated, the Germans rightly feared that the Russians would take retribution on all German citizens and ethnic Germans who had collaborated with the Nazis. The Germans evacuated more than 2 million people into boats, hoping to land them in northern Germany.

Many of the ports had been bombed, however, and the Germans began unloading the people wherever they could, including several hundred thousand people into Copenhagen. In the spring of 1945, German children comprised a majority of the pupils in Copenhagen's schools. The Danes despised them and placed them in concentration camps after the war, waiting to deport them to Germany as fast as possible. That goal had still not been accomplished in August 1948, at the time of the Stockholm conference.

Cohn may also have been motivated to propose the language that later became Article 49(6) in light of his own strong Jewish identity. The original language on deportations presented to the Stockholm conference would not have prevented Germany from deporting its own Jews to slave and extermination camps in Poland and other occupied countries, nor would it have prevented the Germans from sending Danish Jews found in Germany to concentration camps in occupied territories, sending either Hungarian or Italian Jews to Auschwitz, and/or from transplanting Germans to portions of Poland and other occupied countries. Cohn's original language would have criminalized all these practices.

Other participants in Stockholm, led by Albert J. Clattenburg Jr. of the United States, thought Cohn's provision too broad. The phrase "or the inhabitants of another territory which it occupies" was deleted, and "civil" was inserted before "inhabitants."

At the Geneva Conference itself, both the Final Report of the Committee charged with drafting the text of the 4th Convention for consideration by the delegates as well as comments by delegates generally differentiated between transfers that were voluntary and therefore permitted and those that were involuntary and therefore prohibited. As the Final Report to the delegates stated while explaining the differences between various articles dealing with the right of an occupying power to evacuate an area, primarily in the interest of the security of the civilian population's security: "Although there was general unanimity in condemning such deportations as took place during the recent war, the phrase at the beginning of Article 45 caused some trouble. . . . In the end the Committee had decided on a wording that prohibits individual or mass forcible removals as well as deportations of protected persons from occupied territory to any other country, but which permits voluntary transfers."

That is a key reason why Julius Stone termed the anti-settlement interpretation "an irony bordering on the absurd" and commented: "Ignoring the overall purpose of Article 49, which would inter alia protect the population of the State of Israel from being removed against their will into the occupied territory, it is now sought to be interpreted so as to impose on the Israel government a duty to prevent any Jewish individual from voluntarily taking up residence in that area."

There is simply no comparison between the establishment and population of Israeli settlements and the Nazi atrocities that led to the Geneva Convention. The settlements are also a far cry from policies implemented by the Soviet Union in the late 1940s and early 1950s to alter the ethnic makeup of the Baltic states by initially deporting hundreds of thousands of people and encouraging Russian immigration.

Nor can they be compared to the efforts by China to alter the ethnic makeup of Tibet by forcibly scattering its native population and moving Chinese into Tibetan territory. Israel's settlement policies are also not comparable to the campaign by Morocco to alter the ethnic makeup of the Western Sahara by transferring Moroccan Arabs to displace the native Saharans, who now huddle in refugee camps in Algeria, or to the variety of population displacements that occurred in the various parts of the former Yugoslavia.

All these would seem to fit the offense described in Article 49(6) precisely. Yet finding references to the application of Article 49(6) to nations other than Israel is like looking for a needle in a haystack. What distinguishes a system of "law" from arbitrary systems of control is that similar situations are handled alike. A system where legal principles are applied only when it suits the political tastes of anti-Israel elites is one that has lost all credibility. The loose use of international law, disproportionately applied to Israel, undermines the notion that this is "law" entitled to authoritative weight in the first place.

Julius Stone referred to the absurdity of considering the establishment of Israeli settlements as violating Article 49(6):

We would have to say that the effect of Article 49(6) is to impose an obligation on the State of Israel to ensure (by force if necessary) that these areas, despite their millennial association with Jewish life, shall be forever judenrein. Irony would thus be pushed to the absurdity of claiming that Article 49(6), designed to prevent repetition of Nazi-type genocidal policies of rendering Nazi metropolitan territories judenrein, has now come to mean that the West Bank must be made judenrein and must be so maintained, if necessary by the use of force by the government of Israel against its own inhabitants. Common sense as well as correct historical and functional context exclude so tyrannical a reading of Article 49(6).


Stone's pointed critique of what has since become "accepted" wisdom invites a hypothetical: Suppose a group of Palestinian Arabs who are citizens of Israel requested permission to establish a community on the West Bank. Further, assume that Israel facilitated the community's establishment, without the loss of their citizenship, on land purchased from other Palestinian Arabs (not citizens of Israel) or on state land. Would establishment of this settlement violate Article 49(6)? If not, how can one distinguish the hypothetical Arab settlements from Jewish settlements?

Concluding that Israeli settlements violate Article 49(6) also overlooks the Jewish communities that existed before the creation of the state in areas occupied by today's Israeli settlements, for example, in Hebron and the Etzion bloc outside Jerusalem. These Jewish communities were destroyed by Arab armies, militias, and rioters, and, as in the case of Hebron, the community's population was slaughtered. Is it sensible to interpret Article 49 to bar the reconstitution of Jewish communities that were destroyed through aggression and slaughter? If so, the international law of occupation runs the risk of freezing one occupier's conduct in place, no matter how unlawful.

The idea that the creation of new settlements or that the expansion of ones already in place is an act of bad faith on the part of various Israeli governments may seem without question to those who believe those settlements constitute an obstacle to the ever elusive solution to the Arab-Israeli conflict. Whether this argument is well-founded or not, the willingness of Israel's critics to assert that these communities are not merely wrong-headed but a violation of international law escalates the debate over their existence from a dispute about policy into one in which the Jewish state itself can be labeled as an international outlaw. The ultimate end of the illicit effort to use international law to delegitimize the settlements is clear-it is the same argument used by Israel's enemies to delegitimize the Jewish state entirely. Those who consider themselves friends of Israel but opponents of the settlement policy should carefully consider whether, in advancing these illegitimate and specious arguments, they will eventually be unable to resist the logic of the argument that says-falsely and without a shred of supporting evidence from international law itself-that Israel is illegitimate.

 

 

David M. Phillips

Copyright - Original materials copyright (c) by the authors.

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EU Opens the Door to More Mideast Violence.


 by Eric Trager

Next week, European Union foreign ministers will meet to discuss a draft document that calls for a Palestinian state along the 1967 borders with East Jerusalem as its capital.

If approved, this resolution will mark the latest failure of President Barack Obama's remarkably sloppy Middle East policy. After all, American leadership in brokering peace – or attempting to broker it – has been a cornerstone of international consensus regarding the Arab-Israeli conflict for over four decades. Even the Bush administration – which was routinely (and unfairly) lambasted for "waiting too long" to promote Israeli-Palestinian peace – managed to bolster American diplomatic preeminence in this sphere by drafting the Roadmap and assembling the "Quartet" as its sponsor. But with the EU breaking off from the Quartet and developing its own set of policies regarding the conflict, America's leadership on this issue is severely in doubt.

It is worth emphasizing that Washington's longtime involvement in managing the Middle East conflict is as much about showcasing American diplomatic strength as it is about minimizing violence between the two sides. For this reason, the sudden shift in the diplomatic environment is likely to have devastating results. With the EU recognizing Palestinian claims along the 1967 borders – including to lands on which Israeli settlements stand – it is giving Palestinian terrorist organizations the ultimate excuse for attacking. Essentially, these groups would argue that they are fighting to end the occupation of their now-internationally recognized state, and the newfound legitimacy of their violence would encourage it.

These developments – and the extent to which they anticipate renewed hostilities – should give pause to those who doubt the relevance of American primacy to preserving international order. President Obama is one of these doubters.

 

Eric Trager
Copyright - Original materials copyright (c) by the authors.

 

Regime Change of the PA Via Annexation.

 

by Alan Friedlander

 

Were I a member of the Netanyahu Administration I would have voted against the building freeze in the territories. They are sending a confusing message of negotiating against their own position even before the PA regime returns to the negotiation table with them. This was only to placate a foreign power, not in pursuance of good policy for their people. The destructively self effacing courtship of friendship from the anti Jewish PA must cease so that Israel's penchant for kindness and patience no longer be used against it by anyone. Fair play begins with being willing to play by the rules.

The Israeli government's blunder, however, has a silver lining that is found in their special treatment of East Jerusalem in the face of Western linkage of East Jerusalem with Judea and Samaria. It illustrates that they believe that the State of Israel, at least potentially, has absolute authority over the lands conquered in the defensive Six Day War, otherwise how could they assume that their annexation of East Jerusalem is valid? Thus the silver lining in the dark cloud that the Netanyahu Administration performed is that they have incidentally taken a real step in disputing those who erroneously say that U.N. resolutions 242 and 338 make lands conquered in defensive wars barred from annexation by the defensive conquerors. One of the leading foundations in the conflict over the territories is this very dispute.

To briefly explain the basics of that dispute in International Law, those who argued that defensive conquest is illegal since the passage of Resolution 242 are standing upon the implicit but not explicit gist of the resolution's wording and matters of current political expediency alone, whereas those who say defensive wars are legal means of territorial annexation cite actual historic precedents. As even an explicit law forbidding defensive conquest would only be a "customary law", while returning strategic land to a belligerent regime would be aiding and abetting the self destruction of the innocent nation(s) who heed the implicit command of resolutions like 242, which would violate the most profound of International Norms in existence (Jus Cogens) toward their own populace. Humanity, if it is to continue to morally and ethically progress in its great journey through time, cannot bear such crimes against it.

Allow me to ask you this: A man that loves his wife does not mind if she makes a few mistakes here and there. A man that hates his wife does not tolerate any wrong that she does unless he depends on her for something, whether that is for his continued prestige, care of his children, avoiding the loss of his fortune to divorce expense or the like. So what does Abbas have that makes the Netanyahu Administration desire to put up with him?

If Abbas leaves, there is fear that Hamas would take over? How can they not if every time there is an election Hamas gains more and more strength? But that is not Israel's concern. The Arab people subjugated by the PA voted for their terrorist leaders rather than less offensive third party candidates like Hanan Ashrawi's party. Now third party alternatives will likely never again gain the attention of the Palestinian press thus solidifying the hold of the current terroristic PA configuration in perpetuity for as long as the PA will exist. You owe such voters nothing from a foreign policy aspect. Thus when forming your policy towards Palestinian Arabs only humanitarian concerns should be considered in relation to their dire political plight and bleak future if the PA should remain their masters, God forbid.

Standard regime change cannot fix this problem. The regime once removed would likely be replaced by a worse regime. So what you have then is essentially an entire national entity lost to the prospect of achieving true peace through negotiation. Therefore negotiation itself has been made a mockery and even an impediment toward the pursuit of actual regional peace by the will of the Palestinian voters themselves as interpreted by their petty and corrupt leaders. Acknowledge that as long as you hope for the PA to change, there is no hope.

Consider that if you annex only small portions of the West Bank, you abandon thousands of good Arab people within the PA to an endless reign of despotic rulers. It would not be compassionate to ignore their plight. Abraham asked God to spare an entire evil city if only ten good people could be found in it. Many thousands of Arabs voted against Hamas. Do they all deserve abandonment?

Let's put the answer out there plainly. Do not replace Abbas, remove him and his whole regime entirely. Annex the territories and bring democracy and peace simultaneously to the Israelis and Arabs living there. If demographic concerns still haunt, then a plan like the
Everyone Wins Peace Plan can treat that even in the context of such a massive annexation by way of a staggered naturalization process. Either way, you could then have true peace and liberty for all, by the grace of God.

 

 

Prof. Alan Friedlander

Copyright - Original materials copyright (c) by the authors.

 

Syria and Turkey: Walking Arm in Arm Down the Same Road?

 

by David Schenker

 

  • The rapprochement between Ankara and Damascus is only the culmination of the increasingly problematic policies pursued by the Islamist Justice and Development Party (AKP).
  • Two factors in particular seem to have led to Turkey's shift away from Israel and toward Syria. First, Turkey no longer needed Israeli assistance to pressure the Syrian government to change its policy of providing safe-haven to the terrorist Kurdish Worker's Organization (PKK). Second, in the past seven years, once secular Turkish politics have undergone a profound Islamist transformation.
  • At the same time, the dynamic between the Turkish military and the state's civilian leadership has changed. No longer does the military have the upper hand. Today, the Turkish military can do little to impact the policies of the Islamist AKP, which promote solidarity with Islamist, anti-Western regimes while dismissing secular, pro-Western Muslim governments.
  • As Ankara's politics under the AKP have shifted and Turkey has become seemingly less committed to Europe, the state has seen its star rise in the Middle East. Syria's Assad regime likely sees its bourgeoning relations with Turkey as an opportunity to shuffle the existing architecture of regional alliances.
  • Perhaps more worrisome is the prospect that Ankara may over time pursue a closer foreign policy alignment with Iran that would undermine U.S. and Israeli regional interests. Ankara's shift toward Damascus and Tehran makes it even more unlikely that Turkey will participate in "crippling sanctions" to help prevent Iran from attaining a nuclear weapon.

 

The Islamist Transformation in Turkish Politics

In October 2009, Turkey cancelled Israeli participation in longstanding trilateral military exercises and announced instead that it would conduct military training with Syria. To many, Ankara's decision came as a shock. Not only was Turkey (in 1949) the first Muslim majority country to recognize the Jewish state, Israel and Turkey had signed a "military and defense cooperation agreement" in 1996, boosting security ties dating back to the "Peripheral Pact" of the 1950s.

Lately, however, the Islamist government in Ankara, the Justice and Development Party (AKP), has taken the once secular moderate state in another direction. Regrettably, based on the trends in Turkish politics in recent years, this development was entirely predictable. The rapprochement between Ankara and Damascus is only the culmination of the increasingly problematic policies pursued by the AKP.

Two factors in particular seem to have mitigated to shift Turkey away from Israel and toward Syria. First, Turkey no longer needed Israeli assistance to pressure the Syrian government to change its policy of providing safe-haven to the terrorist Kurdish Worker's Organization (PKK). It wasn't a coincidence that only a month before the Israeli-Turkish defense agreement was inked, Ankara issued its first official memorandum demanding that Damascus render PKK leader Abdullah Ocalan. By the end of October 1998 - facing a Turkish invasion - Damascus jettisoned Ocalan and ended its support for the group, setting the stage for improved bilateral relations.1

Second, and perhaps more importantly, in the past seven years, once secular Turkish politics have undergone a profound Islamist transformation. In the past, Turkey's foreign policy paradigm centered on the promotion of national interests vested in the West.2 The AKP, however, sees Turkey's interests through a religious prism. At the same time, the dynamic between the Turkish military and the state's civilian leadership has changed. No longer does the military - which long considered itself the guarantor of Turkish democracy - have the upper hand vis-à-vis the government. Today, the Turkish military can do little to impact the policies of the Islamist AKP, which promote solidarity with Islamist, anti-Western regimes (i.e., Syria, Qatar and Sudan) while dismissing secular, pro-Western Muslim governments (i.e., Egypt, Jordan, and Tunisia).

For Damascus, the rationale for the rapprochement is less complicated. Syria's Assad regime no doubt sees an increasing coincidence of interest with the policies pursued by Turkey under the AKP. At the same time, Damascus may see an opportunity, via improved relations with this NATO partner, to facilitate diplomatic headway with European states.

The combination of these factors has led to a seemingly unprecedented closing of the ranks between Syria and Turkey today.

 

Post-Ocalan

Between 1984 and 1999, the PKK was responsible for the killing of 30,000 Turks.3 Abdullah Ocalan, leader of the terrorist organization, orchestrated the attacks from his Damascus safe-haven, a policy designed to provide Syria's Assad regime with leverage to advance its territorial demands in the disputed Hatay region.4 While Syria's deportation of Ocalan (in conjunction with the October 20, 1998, Adana Agreement) ended overt hostilities between the states, the relationship didn't really blossom until the AKP came to power in the November 2002 general elections.5

In just seven years, Turkey and Syria have signed 46 treaties of cooperation, and today, Damascus is the capital visited most often by AKP foreign ministers.

In 2002, after the AKP victory, Turkey and Syria signed a military training agreement. Two years later, in January 2004, Bashar Assad became the first Syrian president ever to visit Turkey. Later that year in December, Turkish Prime Minister Recep Tayyip Erdogan returned the favor, and when he was in Damascus, signed a free trade agreement that had been under negotiation for several years. The agreement was important, according to a journalist who accompanied the Turkish delegation, because it included a clause in which Syria ceded its claims to Hatay.6

At a joint press conference after the meeting, Syrian Prime Minister Mohammed Naji Otri predicted that "our links will develop in all fields in the future, especially in trade," while Erdogan noted: "It shows how far relations have come between the two countries."7

Improvements in relations between Damascus and Ankara initially didn't appear to have much of an impact on Turkish-Israeli relations. Despite periodic rhetorical flourishes - in 2004, Erdogan denounced the Israeli killing of Hamas leader Ahmed Yassin as "a terrorist act" and Israel's Gaza policy as "state-sponsored terrorism" - the strategic relationship continued to progress. In 2005, Turkey purchased three unmanned aerial vehicle (UAV) systems from Israeli companies for $183 million, and announced the development of seventeen new joint Turkish-Israeli military projects.8

Meanwhile, the bilateral military exercises Reliant Mermaid and Anatolian Eagle continued apace, as did robust economic cooperation. By 2005, Turkey was Israel's largest regional trading partner, importing $900 million in Israeli goods and exporting $1.2 billion in goods to Israel.

As the AKP consolidated power, however, some ominous signs for the Turkish-Israeli relationship started to emerge. In February 2006, AKP officials met with Hamas officials after the terrorist organization's parliamentary election victory in the Palestinian Authority. Then, during the Israeli war against Hizbullah that summer, according to Israeli officials, the Shiite militia was resupplied with spare parts and components for mobile missile launchers from Iran via trucks travelling across Turkey to Syria.9 Nevertheless, until 2009, Turkey continued to broker Israeli-Syrian peace talks in Ankara.

 

2009: The Watershed Year

Turkey's policy of maintaining good relations with both Syria and Israel - emblematic of the state's broader policy of working toward "zero problems" with its neighbors10 - seems to have shifted in 2009. The change coincided with Israel's January military operation in Gaza.

Ankara was extremely critical of the operation and, later that month, Erdogan demonstrated his disapproval via a very public walkout from the January 2009 Davos Conference, where he was paired on a panel with Israeli President Shimon Peres. (Erdogan subsequently justified the exclusion of Israel from the Anatolian Eagle exercise based on Israel's Gaza operation.) Later that month, Turkish efforts to broker a Syria-Israel deal ended.

As Turkish-Israeli ties entered a period of crisis, Ankara enhanced its relations with Damascus. In April 2009, Turkey and Syria conducted their first ever joint military exercises. Then in September, the states announced the establishment of a "Senior Strategic Cooperation Council," and agreed to end visa requirements.11 More recently, in October 2009 - the same week that Turkey cancelled Israeli participation in Anatolian Eagle - Ankara announced yet another round of military exercises with Syria. And just a few days following these exercises, on October 14, Syria and Turkey conducted the first meeting of their strategic cooperation council.

At a joint press conference on October 14 celebrating the inaugural convening of the council, Turkish Foreign Minister Ahmet Davutoglu suggested a new era of bilateral relations. "From now on," he said, "Turkey will continue walking on the same road [as Syria]...sharing a common fate, history and future. We are going to walk hand in hand and work together to revive our region as a center of civilization."12

Syrian Foreign Minister Walid Moualem also praised the burgeoning bilateral relationship, and went a step further, hinting at Syrian hopes of things to come: "Relations between Syria and Iran are excellent...we are open to all friends in the region who want to establish such cooperation with us. And we welcome a strengthening of Turkish-Iranian ties and it pleases us."13

The rapprochement between Syria and Turkey comes as both states are reaching out to old foes. As Moualem noted, Ankara has been improving ties with Iran; meanwhile, Syria has taken steps to patch up its four-year row with Riyadh. In October, after the visit of Saudi Arabian King Abdullah to Damascus, Assad regime advisor Boutheina Shaaban went so far as to describe Syrian coordination with Riyadh as on a par with that of Tehran and Ankara.14

It's not surprising that Damascus has been so eager to align with Turkey. As Ankara's politics under the AKP have shifted and Turkey has become seemingly less committed to Europe, the state has seen its star rise in the Middle East.15 Syria's Assad regime likely sees its bourgeoning relations with Turkey as an even sum game with Israel, and an opportunity to shuffle the existing architecture of regional alliances.

 

Implications

Clearly, 2009 was a watershed year for the Turkey-Syria bilateral relationship and a year of setbacks for Israeli-Turkish ties. While the long-term implications of these developments remain to be seen, the current trajectory is not cause for optimism.

Turkey's move toward Syria epitomizes the changes in Turkish politics that have occurred under the AKP. For Washington, this shift in orientation raises questions about Turkey's viability as a NATO member state.16 Turkey's political transformation could likewise have implications for the remarkable military and economic bilateral relationship that has developed in recent decades between Israel and Turkey.

Israel's military relationship with Turkey - including ongoing joint air force training, military exchanges, and arms sales - appears to be secure for the time being. Should bilateral political tensions continue - and as Ankara and Damascus enhance strategic ties - inevitably Israeli-Turkish military to military relations will suffer. Perhaps more worrisome is the prospect that Ankara may over time pursue a closer foreign policy alignment with Iran that would undermine U.S. and Israeli regional interests.

Turkey's current foreign policy makeover seems to be driven as much by the government's Islamist ideology as by more pragmatic concerns. In 2008, Prime Minister Erdogan hinted at the pragmatic aspect of Turkey's foreign policy reorientation. After Ankara tilted toward Moscow following the Georgia invasion, Erdogan justified the tack toward Russia, saying, "we have an important trade volume [with Russia]. We would act in line with what Turkey's national interests require."17

Like Russia, Turkey is investing in Syria, and like Ankara and Moscow, a pro-Syria lobby of Turkish businessmen has reportedly focused on cultivating and supporting even closer relations between the states. This key constituency suggests that Turkish-Syrian rapprochement may be quite resilient.

For Damascus, the newfound relationship with Ankara represents a great success, all the more so because it may come at Israel's expense. While the operational aspects of the bilateral ties are a work in progress, at a minimum, the rapprochement will insulate Damascus from - or at least make it more costly for Israel to launch - punitive military actions against Syria such as the September 2007 raid on the Kibar nuclear facility. More importantly, Ankara's shift toward Damascus and Tehran makes it even more unlikely that Turkey will participate in "crippling sanctions" to help prevent Iran from attaining a nuclear weapon.

The Assad regime will no doubt look to deepen its strategic relationship with Turkey and encourage Ankara's ties to Tehran. While these developments are cause for concern, for the time being, Turkey remains firmly anchored in NATO and will only go so far. Instead, in the coming months, it seems more likely that Ankara will seek out improved relations with Syria and Iran, while maintaining its strained but nevertheless robust ties to the Jewish state.

With the stakes so high, Israel and Washington will be watching closely for signs that Ankara's Islamist government is aligning even more closely with militant Middle Eastern states. To be sure, if the current trend continues, Syria will be among the leading benefactors.

*     *     *

Notes

* The author would like to thank Soner Cagaptay, director of the Washington Institute's Turkey Program, for his useful comments on this article.

1. Ocalan was captured in Kenya in 1999 and extradited to Turkey.

2. In 1946, Turkey allied itself with the West in the Cold War, and since then successive Turkish governments have pursued close cooperation with the United States and Europe. Turkey viewed the Middle East and global politics through the lens of its own national security interests, making cooperation possible with Israel, a state Turkey viewed as a democratic ally in a volatile region. The two countries shared similar security concerns, such as Syria's support for terrorist groups abroad - radical Palestinian organizations in the case of Israel, and the Kurdistan Workers' Party (PKK) in Turkey. In 1998, when Ankara confronted Damascus over its support for the PKK, Turkish newspapers wrote headlines championing the Turkish-Israeli alliance: "We will say ‘shalom' to the Israelis on the Golan Heights," one read.

3. Yoram Schweitzer, "Suicide Bombings: The Ultimate Weapon?" Institute for Counter-Terrorism at the Interdisciplinary Center, Herzliya, Israel, August 7, 2001, http://www.ict.org.il/Articles/tabid/66/Articlsid/68/currentpage/25/Default.aspx.

4. Soner Cagaptay, "An Opportunity that Comes Once a Millennium," Hurriyet, June 10, 2009, http://www.cagaptay.com/5740/turkey-pkk-opportunity.

5. Some scholars argue that improvements in the bilateral relationship were also driven by the U.S. invasion of Iraq, which both the Turks and the Syrians opposed. See, for example, Altunsik and Tur, "From Distant Neighbors to Partners? Changing Syrian-Turkish Relations," Security Dialogue, 2006; 37; 229.

6. Yoav Stern, "Turkey Singing a New Tune," Haaretz.com, September 1, 2005, http://www.haaretz.com/hasen/pages/ShArt.jhtml?itemNo=524517.

7. "Syria and Turkey Agree on Water Problems," Journal of Turkish Weekly, December 23, 2004, http://www.turkishweekly.net/news/975/syria-and-turkey-agree-on-water-problems.html.

8. Brock Dahl and Danielle Slutzky, "Timeline of Turkish-Israeli Relations, 1949-2006," Washington Institute for Near East Policy, 2006, http://www.washingtoninstitute.org/documents/44edf1a5d337f.pdf.

9. Eli Lake, "Iranian Shipments to Hezbollah Strain Israeli-Turkish Relationship," New York Sun, August 23, 2006, http://www.nysun.com/foreign/iranian-shipments-to-hezbollah-strain-israeli/38364/?print=3273447521. Washington reportedly issued a formal complaint to Turkey over the incident.

10. Bulent Aliriza, "Turkey and the Crisis in the Caucasus," Center for Strategic and International Studies, September 9, 2008, http://csis.org/publication/turkey-and-crisis-caucasus.

11. Borzou Daraghai, "Turkey, Syria: Nations Sign Historic Accord, End Visa Requirements," Los Angeles Times, September 17, 2009, http://latimesblogs.latimes.com/babylonbeyond/2009/09/turkey-syria-two-nations-sign-historic-accord-end-visa-requirements.html.

12. Sebnem Arsu, "Turkey and Syria Signal Improved Relations," New York Times, October 14, 2009.

13. "Al-ta'awun al-Istratigi yadkul fi salb al-Ilaqa Al-Suriya al-Turkiya," Al Watan, October 14, 2009, http://www.alwatan.sy/newsd.php?idn=66502.

14. Ziyad Haydar, "Shaaban: Al-tansiq al-Suri al-Saudi yudaf ila al-tansiq maa Turkiya wal Iran," Al Watan, October 8, 2009, http://www.alwatan.sy/newsd.php?idn=66502.

15. See, for example, Paul Salem's op-ed in Al Hayat, "Al Sharq al-awsat yadkhul al-'Asr al-Turki," October 30, 2009, http://international.daralhayat.com/internationalarticle/70793.

16. David Schenker, "A Nato without Turkey?" Wall Street Journal Europe, November 6, 2009, http://online.wsj.com/article/SB10001424052748704013004574517210622936876.html.

17. Bulent Aliriza, "Turkey and the Crisis in the Caucasus."

 

David Schenker is Aufzien Fellow and Director of the Program on Arab Politics at the Washington Institute for Near East Policy.

Copyright - Original materials copyright (c) by the authors.

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