Getting away with murder: the Elor Azarya ‘manslaughter’ case

Middle East
on 28 Comments

Three days ago, the Israeli soldier-medic who shot and killed a wounded, immobilized Palestinian in Al-Khalil (Hebron) on 24th March 2016, was found guilty – of manslaughter.

This case has caused waves of emotion throughout Israeli society. In the aftermath of the verdict (still without sentence), which Defense Minister Lieberman called ‘harsh’, politicians from right and left have already called for pardon (notably including not only Netanyahu, less surprising, but also Zionist Union Shelly Yechimovitch, slightly more surprising). Hundreds of Azarya’s supporters clashed with police outside the courthouse, threatened to ‘turn the country upside down’ and called for the murder of Chief of Staff Gadi Eisenkot and judge Maya Heller.

With all this hysteria and hyperbole, it can become difficult to see what the case actually is.

When a video came out the day after the shooting, showing Azarya shooting the unarmed, already shot and immobile Abdel Fattah Al-Sharif in the head at point blank, Azarya was first charged with murder, but only a few days later the charge was changed to manslaughter. Netanyahu, who initially went with the ‘responsible’ line of calling for moderation, could not resist the pull of his own mantra that “IDF soldiers are not murderers”, and almost immediately called the family to show sympathy.

Thus within days, the court case was rigged to be within the limits of mainstream Israeli feeling about what is permissible to even contemplate. Israeli soldiers cannot be murderers, no matter what they do, because, as Netanyahu formulates it, they themselves “act against murderers”, so when all is said and done, it must be regarded as self-defense.

This is an axiom that was apparently accepted by the wide Israeli public. No question there – even the political left sees the very conviction, before any sentence is meted out, as worthy of pardon. Azarya is not a murderer, no way – and even if he’s a mere ‘killer’, he deserves pardon.

Another axiom that is not being questioned at all in Israeli legal opinion and mainstream media including Haaretz, is whether Al-Sharif is at all a terrorist. In the reading out of the court decision to convict, Judge Heller said, “We have adopted the conclusion that the terrorist’s death was caused by the shooting by Azaria.” 

She repeatedly regarded Al-Sharif as “the terrorist”, although if he indeed was one of the stabbers of the Israeli soldier who was moderately wounded, then he would have been attacking an armed occupying force. By common international legal perception, this act falls under legitimate struggle for “liberation from colonial and foreign domination”. To quote United Nations General Assembly Resolution A/RES/33/24 of 29 November 1978:

“2. Reaffirms the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial and foreign domination and foreign occupation by all available means, particularly armed struggle;”

But in Israel, this is meaningless. Al-Sharif is considered a ‘terrorist’, no question about it.

Let us look at the actual verdict, which notes that “the terrorist did not pose a threat” and that “there is no grounds for the claim of self-defense”, noting the weight it put on Azarya’s commander’s testimony (Major Tom Neeman) who testified that Azarya said that “this terrorist was alive and he needs to die”.

So, the question has to be asked in retrospect: why is it, if these indeed are the findings which confirm the first prima facie evidence of murder, that the charge is manslaughter, and not murder? Israel does, after all have an elaborate four-part murder definition (criminal law article 300(a)), where Azarya’s case clearly seems to fall into the second clause, of premeditated murder. But this discussion is not being aired in Israeli society.

Indeed, Abdel Fattah’s uncle, Fathi al-Sharif, said following the verdict: “The fact that the soldier is convicted of manslaughter isn’t such an important development from our standpoint. From the beginning, we stated that he had committed murder and needed to be convicted of murder. The fact that they changed the count of the indictment to manslaughter from our standpoint is a perversion of justice and of the court.” 

Ironically, coming from the other side, deputy foreign minister Tzipi Hotovely had a real point, when she said that the whole thing was merely “a show-trial with a predetermined conclusion.” She just didn’t realize it.

 

According to testimonies of Azarya’s own company comrades, such ‘incidents’ happen “tons of times”. But they are hardly ever investigated. The last case of conviction in manslaughter in IDF was in 2004, in the case of the British peace activist Tom Hurndall, who was shot in the head by an IDF sniper whilst he was protecting Palestinian children in Gaza. Initially, the army internal investigation offered the standard conclusion, that Hurndall was shot by accident. But since Hurndall was not Palestinian, and since pressure was mounted also by British government, a more comprehensive trial took place, and the shooter was convicted both on charge of manslaughter as well as obstruction of justice (for false testimony). He got 8 years but came out within 6.5. In 2006, a UK Inquest Jury found that Hurndall had been ‘unlawfully killed’, where lawyer Michael Mansfield QC, who represented the family at the inquest, said: “Make no mistake about it, the Israeli defence force have today been found culpable by this jury of murder.” 

These cases are clearly aberrations. It cannot surprise us that the video of the murder by Azarya, probably one of the clearest IDF ‘snuff-clips’ to be seen, was an issue that could not be brushed away and whitewashed in some standard investigation. Whilst it is difficult to take Azarya’s contradicting testimonies and defense seriously (his defense claimed that Al-Sharif was both thought dead and posed a threat at the same time), Azarya noted that his commander (Neeman) slapped him a few times after the shooting, and said that this should “remain between us”. Regardless of how true that is, it is clear that societally, Israelis would rather have all this dirty laundry ‘remain between us Israelis’. The video catapulted the bloody laundry to the whole world, and it had to be dealt with. The ‘dealing’ was thus to whitewash ‘murder’ into ‘manslaughter’.

The military echelon at the time of the murder, including Defense Minister Moshe Ya’alon and Chief of Staff Gadi Eisenkot were of the view that the soldier had ‘erred’, and that his actions did not represent IDF values.

Nonetheless, in the wake of the stabbing attacks in October 2015, mostly by young Palestinians, there were calls across the board from the political and security establishment for a shoot-to-kill policy:

–        Interior Minister Gilad Erdan declared that “every terrorist should know that he will not survive the attack he is about to commit”

 –        Jerusalem police chief Moshe Edri said, “Anyone who stabs Jews or hurts innocent people is due to be killed.”

 –        Yair Lapid, MK and Chairman of the Yesh Atid Party, “Whoever takes out a knife or a screwdriver, or whatever it may be, the directive needs to be shoot in order to kill. Not to hesitate. There will be full legal backing. The state gives full legal backing.”

 –        Prime Minister Benjamin Netanyahu told paramilitary Border Police units: “I know that it requires your discretion, but have no doubt: You have complete backing – complete! – from me, from the Israeli government, and in my opinion from the nation in Israel.”

–         Benti Sau, Israeli Police Acting Commissioner, said “From my personal experience, I can tell you that at this time, we have received backing from the political level, full backing from the legal system.”

 And indeed, the two ‘moderates’, Yaalon and Eisenkot added to the choir:

–        Ya’alon announced at a press conference, “Right now is it required to respond quickly to any local attack to eliminate the terrorist stabber or the perpetrator stone thrower and the like, immediately, on the spot.”

–        Eisenkot said, “Our policy of use of force is very clear. The IDF has complete freedom of action in order to fulfill the mission to restore security.” 

Eisenkot now tries to appear the ‘responsible’ and ‘moderate’, ‘educating’ the ‘erring’ public that waxes emotionally about Azarya being ‘our son’: “An 18-year-old who enlists in the IDF isn’t everyone’s child, he isn’t a baby who was taken prisoner”, he says, and adds that “we demand that our soldiers follow the IDF’s set of values: to defend the country with loyalty and love, to treat people with respect, to persevere in the mission. These aren’t just slogans, this is a set of values”. Then he said something which deserves special attention when it comes to Eisenkot: “The fact that we haven’t seen a third intifada develop is a result of concentrated force that distinguishes between the general population and the terrorists,” he said.

Now this last phrase deserves special attention, because Eisenkot is the man who coined the ‘Dahiya Doctrine’. This doctrine is named after the civilian neighborhood of Dahiya in Beirut, where many families of Hizbollah members resided. In 2006, Israel levelled the neighborhood. This collective punishment, blatant disregard for the principle of distinction and deliberately disproportionate violence is a prima facie war crime. Eisenkot not only supervised the actions as chief of Northern Command at the time – he later (2008) even declared it policy for future warfare:

“We will wield disproportionate power against every village from which shots are fired on Israel, and cause immense damage and destruction. From our perspective, these are military bases…This isn’t a suggestion. This is a plan that has already been authorized.”

So now the big-time war criminals who have escaped all criminal prosecution are calling for responsibility and moderation from all sides. Lieberman, who has earlier called for the decapitation of disloyal Palestinians with axes and drowning them in the Dead Sea, is calling to respect the ‘difficult’ and ‘harsh’ verdict. In a bizarre twist, whilst Lieberman is saying that talk of pardon reflects ‘ignorance’ and is just ‘slogans’, both Netanyahu and Yechimovitch overtake him in populism.

 

Now – a little reality check.

Compare all this, to another conviction two days ago, of two East-Jerusalemite Palestinian boys aged 13, Shadi Anwar Farah and Ahmad Raed Zatari, for attempted murder. Exactly a year ago, Farah and Zaatari were charged with attempted murder and possession of knives, after Israeli forces allegedly found them carrying knives during a stop-and-search in Jerusalem. As is the routine with Palestinian children, they were interrogated in the absence of adult family members and lawyers, “which is a serious violation of Israeli law and international law”, as Amjad Abu Asab, who heads a Jerusalem committee for prisoners’ families, said.

It should be added, that whilst the two were initially detained over a year ago on 12 December 2015, the period they have already spent in detention would NOT be counted in the sentence. Thus, effectively, a three-year prison sentence.

Here, but due to the mere presence of a knife, and on the basis of illegal interrogations, the word ‘murder’ is a non-issue. We are not likely to hear of these boys in much of mainstream media and their names will certainly not be nearly as known as Elor Azarya’s.

Thus, the Israeli reality reveals itself. A murder by a heavily armed adult filmed closely is not a murder. But a Palestinian child carrying a knife, with the alleged (and most likely coerced) ‘confession’ of a wish to use it, is ‘attempted murder’.

We must remember that in some of Israel’s most egregious and admitted massacre cases, such as the Kafr Qasim massacre in 1956  (49 civilians killed and scores wounded by Israeli Border Police), even though several junior officers were convicted of murder (yes, apparently possible then, but it hasn’t happened in the past three decades as Shir Hever notes), they all ended up free after maximum 1.5 years due to various pardons. The case became public despite David Ben-Gurion’s attempts to hush it up and whitewash it through military censorship, and a trial ensued. The case is sometimes taught in Israeli schools, in Civility lessons, as a seminal one in which an Israeli court for the first time coined the term “illegal order”. But this is a highly misleading narrative, because the ‘illegal order’ came from Col. Issachar Shadmi, who was first charged with murder and deviation from authority, but then acquitted of murder and merely ‘reprimanded’, with an iconic punishment: one-tenth of a lira. That’s how much those lives were worth. Several of the junior officers were later promoted and continued in military careers. Col. Shadmi also continued his military career.

It is therefore doubtful that Israeli justice and societal pressure will allow Azarya, who is now a national hero for so many, to stay in prison for very long. To begin with, he wasn’t even charged with his actual crime – murder.    

                                                                                       

About Jonathan Ofir

Israeli musician, conductor and blogger / writer based in Denmark.

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28 Responses

  1. Cliff
    January 7, 2017, 12:09 pm

    Hope everyone had a good holiday. I glance at the blog every now and then, but work is busy.

    Israel is such a hell-hole.

  2. AddictionMyth
    January 7, 2017, 12:10 pm

    “And the Israeli said, The Palestinian whom thou gavest to be with me, he showed me the screwdriver, and I did kill.”

    The banishment is nigh.

  3. John O
    January 7, 2017, 12:15 pm

    Perhaps Azarya will, like William Zantzinger, be given a 6-month sentence for penalty and repentance.

  4. amigo
    January 7, 2017, 3:01 pm

    Azarya is guilty of the crime of indiscretion by shooting the Palestinian in the presence of a Camera.This is the basis on which he will do jail time.Nothing to do with morals or obeisance to the law.

    Watch for Israeli pols to put forward legislation banning the possession or use of cameras by Palestinians or those seeking to get the truth about Israel into the mainstream media.

  5. George Smith
    January 7, 2017, 3:38 pm

    Would it be more satisfactory if Azarya were convicted of murder? I don’t think so. Are we forgetting the incessant incitement that, particularly compelling among Mizrachi youth like Azarya, that is the real cause of this killing? Is not manslaughter a fitting charge, so that the real murderers can be appropriately indicted?

    • just
      January 7, 2017, 3:59 pm

      There is nothing “satisfactory” about any of this. Let’s be honest.

      Abdel Fattah Al-Sharif was executed by an IOF MEDIC!!!

      Yet he remains a hero to the masses.

      Mizrahi or Ashkenazi (or whatever), it is not a “fitting charge”. Wait to see what sentence that this ‘child’ of Israel gets. There are many who are using him and they should be punished, too. (I’ll wait…)

      He executed a man, and many in Israel and around the world applaud him.

      It’s disgusting.

      • Maghlawatan
        January 9, 2017, 4:19 am

        After the Carmel fires in 2010 the responsible minister, Shas head Eli Yishai, pulled out the Mizrahi defence

        http://www.haaretz.com/print-edition/news/yishai-i-m-being-lynched-because-i-am-ultra-orthodox-right-wing-and-mizrahi-1.329065

        “Eli Yishai is furious. “It’s a lynching,” the interior minister said to Haaretz on Sunday, in response to growing pressure for him to resign over the Carmel fire.
        Yishai was the first to go on the defense – he called for a state committee of inquiry and had his spokesman give the media documents ostensibly exonerating his conduct. Now the Shas chairman is going on the offensive.
        Last night, as the fires were being extinguished, Yishai and his party colleagues in the cabinet said he was being persecuted partly due to the fact that he is ultra-Orthodox, right-wing and Mizrahi.”

        Nobody in Zionism does responsibility.

    • Annie Robbins
      January 7, 2017, 4:19 pm

      Are we forgetting the incessant incitement that, particularly compelling among Mizrachi youth like Azarya, that is the real cause of this killing?

      huh? can you break down this incitement among Mizrachi youth that is allegedly the cause of this killing

    • George Smith
      January 7, 2017, 10:54 pm

      I wasn’t being clear. The crime itself was heinous, as we all agree. I’m not arguing that it shouldn’t be punished. What I’m objecting to is the personal vindictiveness directed against Elor Azarya himself, who lived in a clotted milieu of incitement on the part of his peers, his superiors, the social media, TV commentators, and politicians at the highest level. For young Mizrachi second-class citizens especially, I imagine that the pressure to “belong” by joining in the hate-fest against “Arabs” for whom they themselves might otherwise be mistaken must be particularly strong. I feel sorry for Osha and Charlie, Elor’s parents, as well. Put yourselves in their place. Can you not see the grief on her face in particular, and not take pity?
      Sure, the inciters “console” her with vile encomiums to his “service” to his country. So it is with us too. Our soldiers who fall in Iraq or Afghanistan are laid to rest with vile lies about their “service” to their country, instead of honest, abject admissions that they killed and died for injustice.
      Let’s say the army and the political establishment had arranged to charge Elor Azarya with murder instead of manslaughter. Lock him up and throw away the key. Would that be an increase in justice on their part? Should that lessen in even the tiniest degree our rage against the system they’ve put in place?

      • Annie Robbins
        January 8, 2017, 2:08 am

        george, your argument could be made about any criminal.

        young Mizrachi second-class citizens especially, I imagine that the pressure to “belong” by joining in the hate-fest against “Arabs” for whom they themselves might otherwise be mistaken must be particularly strong.

        no one grows up to shoot a person laying prone on the ground, w/a bullet in the head. nor walks into a convenience store and shoots a clerk. no one in a murderer when they come out of the womb. i don’t advocate the death penalty, and that’s on principle (even the most horrific murderer i would not alter that principle) not because of some sociological biographical data about the killer. but this second-class citizens especially stuff you imagine, what makes what he went through any different than any other murderer?

        I feel sorry for Osha and Charlie, Elor’s parents

        and the family of the dead guy? the one no one even confirmed killed anyone or commited any crime other than what the occupying army said he did. what about his brother and sister. do you, in your infinite imagination assume the killer, the young Mizrachi second-class citizen, had it any tougher than the victim of this crime?

        i’m just wondering what distinguishes this killer’s lifetime woes more than any other killer. what killer has less baggage than the one you’re concerned about. name one. dylan roof? why not sing a sympathy song for him? or do you think young roof had an easier upbringing than young Mizrachi second-class citizen and Osha and Charlie are more bereaved and in sorrow than dylan roofs parents? what killer doesn’t deserve the sympathy you’ve displayed for this one?

      • echinococcus
        January 8, 2017, 8:18 am

        Smith,

        The Azaria family is made of the same cloth as the inflamed right that turned the soldier’s trial into a nationalist-political hot potato. During the Protective Edge campaign in the summer of 2014, Azaria’s father, Charley, wrote on Facebook, “[Ultra-nationalist rabbi Meir] Kahane was right.” Elor’s mother confirmed this and added, “Death to those who harm Jews. Enough with the humanism; if needed, kill women and children.”

        http://www.al-monitor.com/pulse/originals/2017/01/israel-idf-avigdor-liberman-naftali-bennett-elor-azaria-idf.html#ixzz4VAx0CLuC

        Just a normal little family –like 95% or more of the Herrenvolk invaders.

    • Marnie
      January 8, 2017, 12:47 am

      ‘mizrachi youth like Azarya’ – are you referring to the zionist state’s history of racism and marginalization wrt its so-called ‘arab jews’?

  6. Kay24
    January 7, 2017, 7:50 pm

    They always get away with murder. Israel has one standard for its soldiers and citizens, even illegal settlers, and another for Palestinians including children. They are one of the most despicable rogue nations, that take advantage of their control of American leaders, and keep breaking international laws. We have seen so many videos of Palestinians being brutalized or killed, and yet the so called democracy does not hold it’s criminals accountable for those crimes.

    I wonder whatever happened to the two killers who used snipers to kill 2 innocent kids who were simply walking by, during the Nakba anniversary celebrations. Israel murders unarmed civilians and their IDF thugs keep getting away with it.

  7. Marnie
    January 8, 2017, 1:17 am

    +972
    By Haggai Matar
    |Published January 7, 2017
    Deputy defense minister wants to give IDF soldiers a license to kill

    Eli Ben Dahan, who once called Palestinians ‘subhuman,’ wants soldiers to be able to freely shoot to kill.

    “Israel’s Deputy Defense Minister Eli Ben Dahan is reportedly working on submitting a bill proposal that will grant soldiers a license to kill, according to a Channel 2 news report that aired Saturday evening.

    The bill will allow security forces to “enjoy immunity from actions they carried out or refrained from carrying out, and all before, after, and during an operational activity or terrorist attack that was not part of the day-to-day operational activities of the unit in which he/she works or serves.”

    In other words: soldiers and police officers will be able to shoot to kill — before, during, or after a military operation, and regardless of how justified the act is.”

    A soldier or police sees a palestinian at a protest, but for some reason couldn’t kill them then. After a few hours or days or whatever, the soldier or police sees their target out walking around and decides to kill them. Will this fall under the category of ‘enjoying immunity’? There is no end to this nightmare.

    • a blah chick
      January 8, 2017, 6:27 pm

      Wouldn’t this law undermine the IDF’s authority over their troops? Also will robbery and sexual assaults be allowed?

      This will not end well.

      • Marnie
        January 9, 2017, 12:47 am

        a blah chick –
        Wouldn’t this law undermine the IDF’s authority over their troops? Also will robbery and sexual assaults be allowed?

        I hadn’t thought about it like that. I think Azaria murdered Abdel Fattah Al-Sharif in front of an officer. What does that say?

        After reading the 972 article I wondered about rapes too. I wonder what the t-shirts will be looking like in the future.

        http://www.haaretz.com/polopoly_fs/1.762555.1483361527!/image/1819474358.jpg_gen/derivatives/fullscreen_543xAuto/1819474358.jpg

        Givati brigade soldiers produced another with a drawing of a downcast naked woman with the caption: “You think you’ve been raped? The end of the training program for Shaked Div. 12.” The implication is that the soldiers in the Shaked unit suffered worse.

    • Maghlawatan
      January 9, 2017, 4:21 am

      This would be about the collapse of discipline in the Israeli Army. It’s not really an army any more.

      http://www.ft.com/cms/s/0/725c72a4-14ee-11de-8cd1-0000779fd2ac.html

      “I felt there was a lot of thirst for blood,” one soldier is quoted as saying. “This is the beauty of Gaza. You see a person walking down a street or path; he does not have to be with a weapon. You just have to see him with something, and you shoot him.”

      “Central to Israel’s defence of its actions in Gaza in 2014 is the claim that international humanitarian law (IHR) is inadequate and must be modified to accommodate the “asymmetrical”nature of modern warfare. ”

      The rot goes far deeper than one murderous soldier.

      • Mooser
        January 9, 2017, 11:21 am

        Gee, I wonder who is making a career out of the IDF now? I wonder who the Officers are?
        And gosh, wouldn’t the ‘chaplains’ in the Army of a religious state have a lot of influence?

      • Maghlawatan
        January 9, 2017, 4:23 pm

        Mooser, a huge proportion of Israeli army officers are religious fruitcakes with links to militant yeshivas . Jews wouldn’t do that. Except they do, these days. The brainwash. It’s why there are no Israeli global cultural icons with quality output.

        The counterfactual is still top notch

  8. HarryLaw
    January 8, 2017, 11:48 am

    Israel is to consider a new law which could introduce “balanced” legislation which just about presents Israeli Defence Forces (IDF) with a license to kill without fear of being prosecuted. “‘You protect us, we protect you”: Israel mulls legal immunity extension for IDF soldiers
    https://www.rt.com/news/372948-israel-soldiers-immunity-legislation/

    • just
      January 8, 2017, 1:50 pm

      Right-o.

      They’ll legislate and codify their heinous history of ethnic cleansing~ decades of crimes against humanity and their relentless violence and murders! It ain’t just the IOF, but also the police, the ‘border guards’, and the illegal gun- toting squatters who kill and maim innocent and Occupied Palestinian human beings.

      Meanwhile, they keep stealing Palestine and Palestinian lives.

      Why don’t all Israelis get together and come up with a Constitution?

    • a blah chick
      January 8, 2017, 6:10 pm

      They pretty much have immunity now.

  9. Ossinev
    January 8, 2017, 12:41 pm

    With the lorry ramming incident in Jerusalem today I expect the howls for a pardon irrespective of the actual sentence will grow louder and louder with Bennett, Shaked ,the Yahoo and all the other closet Fascists queuing up to voice their undying love and support for Israel`s poor little most moral baby soldiers.

    To borrow a phrase from the much missed Regurgitev:Lets be clear killing a helpless wounded man woman or child who is posing no threat by pointing your army issue weapon and shooting in the head is murder everywhere else in the civilised world. Not so in Israel which is not surprising as ZioIsraelis are quite simply not members of the civilised world.

    • a blah chick
      January 8, 2017, 6:08 pm

      I saw one account that claimed the soldiers did not immediately open fire. The allegation is that their “hands were tied” the Azaria verdict. Yeah, right.

  10. amigo
    January 8, 2017, 2:30 pm

    Must be easy to reach the rank of Sergeant in the IDF. In most armies , the rank of sergeant takes on average ten plus years to reach.This puts the average age to gain this rank at 28/30.This “Child “which is what he is referred to by his supporters made that rank at 19.

    Go figure.

    • a blah chick
      January 8, 2017, 6:06 pm

      I enlisted in the Army Medical Corps as an E-3 (PFC) back in 1982 and when I got out four years later I was a sergeant. But I had a college degree and was in my late twenties. Also I was supervisor to others troops and had a superior who pushed for my promotion.

      19 does seem rather young. He obviously did not make rank with any soldiering skills.

  11. Sulphurdunn
    January 8, 2017, 5:12 pm

    I was a soldier once. I killed enemy soldiers in combat. I can understand the killing of wounded or surrendering enemy during the danger and confusion of battle, even civilians. It happens. I cannot understand executing a defenseless man on a public street after the fight is over and no threat any longer exists. I am very disturbed by the photograph of a smiling man being paraded through the street on the shoulders of his buddies for committing such an act, as though killing anyone for any reason was something to be proud of.

  12. Ossinev
    January 9, 2017, 1:33 pm

    Like Begin and Shamir those cultured moral terrorists ( Iin Ziospeak “freedom fighters” )Azaria the “hero” will perhaps go on to be a future Israeli Prime Minister after his pardon/slap on his baby wrist sentence whichever. No wait a minute cancel that he is Mizrahi and definitely way down the pecking order in Zioland`s caste system. I think it is an only white European looking candidates should apply position.

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