Outsorcing of Security to private Military Contractors: State Responsibilities

CHAPTER 1
BACKGROUND OF THE STUDY

Introduction

The monopoly of the use of force granted to modern States by its citizens is a relatively new phenomenon. Private armies have been operating in European States till the XIX century. The use of mercenaries has been historically a constant phenomenon till almost the end of the XX century, when their activities were criminalized by the international community. Parallel to that phenomenon during the European colonial expansion over all continents, governments had authorized two other forms of similar violence by non-state actors: the corsairs and the colonial merchant companies.

At the threshold of the XXI century, with the triumph of neo-liberalism, the globalization of the world economy and the “hunger for vast unregulated markets”, we are witnessing a similar phenomenon. Although mercenaries have not completely disappeared, “private military and security companies” have increasingly taken over the traditional activities carried out by mercenaries before in the course of the past 20 years. Contrary to mercenaries, private military and security companies are transnational corporations legally registered which obtain contracts from governments, private firms, intergovernmental and non-governmental organizations. In low intensity armed conflicts or post conflict situations such as Afghanistan and Iraq their employees, contracted as civilians but armed as military personnel, operate in “grey zones” as unlawful combatants without oversight or accountability, under murky legal restraints and often with immunity. Private security companies also protect multinational extractive corporations. In such situations, the employees working for the private security companies protecting the multinational extractive corporations are often found involved in social conflicts with the local populations.

In many parts of the world, one can see the trend towards the privatization of warfare and the utilization of armed force by transnational corporations to do business. In all these new situations one can also find elements of bygone historical periods, the use of force by non-state actors. In addition, can also be detected alarming signs indicating the possibility of privatizing UN peace operations.

The Working Group on the Use of Mercenaries, established by the United Nations in 2005, has received a very complex mandate. It covers the impact on human rights of mercenaries, mercenary related activities, as well as the emergent trends due to the activities of private military and security companies. The Working Group has been requested to study and monitor the new modalities and patterns of mercenarism and to make concrete proposals, including new norms, principles or guidelines to fight this new phenomenon.

Mercenary and mercenary-related activities; emergent trends of private military and security companies; the study and monitoring of the new trends, modalities and manifestations of mercenarism and the impact all these have in the enjoyment of human rights together with the strengthening of the international legal framework are the main challenges the UN Working Group faces in carrying its functions.

New trends, modalities and manifestations of mercenarism

In the past twenty years there has been, primarily in Western European and North American countries and particularly in the United States and the United Kingdom, a significant expansion of private military and security companies (PMSCs). They provide services in zones of low-intensity armed conflict and post conflict situation such as Afghanistan, the Balkans, Iraq and Colombia. Parallel to this privatization of warfare at the international level the demand for private security and protection of property at the domestic level has tremendously increased all over the world.

By privatizing a number of police and military functions, security is becoming everywhere in the world a commodity for those who can afford it. This is happening in developed countries such a Canada with a democratic and progressive tradition as well as in developing countries. A close study of the practices of a Toronto-based private security company named Intelligarde International shows that security guards – as agents of the landlords – have the right to arrest anyone trespassing or committing a crime. The word “parapolice” is the actual term used by the security employees to describe their job. And, in fact, it is quite accurate, considering that their work is not just one of prevention (traditionally the field of the private sector), but clearly falls in a reactive approach. In crime control, an activity that is believed to be exclusively within the competence of the public police: they investigate and report, they arrest, ban, issue notices

The Peace of Westphalia in 1648 created the modern nation state. Until then, various city states, kings, landlords, emperors, and businessmen had routinely employed mercenaries to fight their battles and wars. The creation of the nation state would have seemed to eliminate the need for mercenaries due to the establishment and rise of national armies; but that was not the case. Mercenaries or some form of thereof, continued to be present, if not dominant, during modern conflicts. However, the term mercenary no longer accurately describes all of the private contractors on the battlefield. The term Private Military Company (PMC) is a more accurate title for those who are outsourced for war.

The term PMC came into use at the end of the Cold War. With the collapse of the Soviet Union in 1989, at least two events occurred that caused the rise of the private military industry (PMI). First, small states lost their super power supporter either the United States or the Soviet Union. This event allowed underlying currents to come to the forefront and small wars began to occur around the globe. Second, many countries began to scale down their militaries, which led to a surplus of military expertise in the international market (Singer, 2003).

Contemporary PMC operate globally, and the United States Government has made extensive use of their services in the ongoing conflicts in Afghanistan and Iraq. The omnipresence of PMCs seems to indicate that at least some USG leaders believe that PMCs operate as legitimate businesses. If this is true, then could PMCs do more to help the US military?

In the course of the three centuries preceding the end of cold war, the use of military force had become a monopoly of nation states (Sapone, 1999). Since the end of the Cold War, however, a trend can be observed towards increased privatization of military services both on the demand and supply side of the use of force (Rosky, 2004). These emerging conflicts increased the demand for military especially in the proxy states of the former super powers. The primary reason for this is that the proxies had lost their former strategic significance. Due to this decreased importance they experienced a cut off from military support they hitherto enjoyed (Friccione, 2005). Moreover, the impressive scale down of the standing armies of the Cold War’s opposing blocks lead to a large surplus of military personnel and equipment. Thus, the end of the Cold War caused not only a demand for military services and equipment but provided also the supply in the form of ex-soldiers (know how) and material (Singer, 2003).

On the demand side, one will find those actors that outsource the military use of force to private sector service providers, states, international organizations (IOs), multinational corporations (MNCs) and non-governmental organizations (NGOs). States are, at the present, the most prominent representatives on the demand side: therefore, this study will place focus on the area of state responsibility. However, increasingly IOs are mentioned in connection with private military services, a development warranting a closer look at the responsibilities of IOs (http//ipoaonline.org/en/publications/research.htm). Certain MNCs and NGOs also rely on private corporations when it comes to securing their operations in unstable and insecure environments (Avant, 2006). However, the use of private military services by MNCs and NGOs does not fully square with the traditional meaning of ‘’ privatization’’ and, in addition to that, the majority of legal experts still hold the view that MNCs and NGOs are not per se, subjects of international law, capable of bearing responsibility on the international plane, unless obligations have been expressly conferred on them by states (Singer, 2003). Therefore, this study will deal neither with MNCs nor with NGOs.

As regards the supply of military services, the end of the Cold War contributed to the surge of private military corporations, profit driven firms that offer military services necessary for armed conflicts. The phenomenon of outsourcing military tasks to these firms significantly impacts on the way wars are planned and waged. The prevalence of firms in this sector in recent armed conflicts, for example, in Iraq and ongoing insurgency there, raises questions about the legal implications which the decision to outsource military force to private corporations might entail. Therefore, this proposed study will explore responsibilities of states and IOs that arise in connection with the use of PMCs.

The aim of this study will be to, first, explore which responsibilities states and international organizations incur under international law if they use the services of PMCs, that is, if they privatize the use of military force (Rosky, 2001); second, the study will use this survey of responsibilities to address the question whether there are, at present, substantial gaps in international law that need to be filled in order to deal adequately with the outsourcing of military force. Third, the study will then suggest how to deal with such gaps.

Outsourcing of Military Force

The provision of military force by private individuals or groups is not new (Vernon, 2005). On the contrary, the state monopoly on the exercise of military force as is commonly perceived to be ‘’ normal’’ in modern states is quite a recent phenomenon. It was not before the emergence of the sovereign nation states following the peace of Westphalia in 1648, and the introduction of large standing armies in conjunction with the technological improvement of firearms around the end of the 18th century, that hired private troops started gradually to vanish from the battlefields, until, by the 1960’s, the once impressive private military market had become reduced to include only individuals offering their services informally, so called mercenaries or ‘’ guns for hire’’. Against this background, the state monopoly on the use of military force can rightly be termed a historical anomaly.

Also, the general change in warfare itself has offered business opportunities of private specialists (PMCs). The technology of modern weapons has become so sophisticated that states’ armies require specialists for training, maintenance and sometimes also operations. Such special knowledge is increasingly provided by PMCs which and this has to be stressed, operate also within the area of the actual armed operations. On the other hand, sophisticated technology today allows non-state groups to wield power that was unthinkable a decade ago. This development relates to the perceived criminalization of armed conflicts in two ways: criminal groups now have access to superior technology by contracting private experts and potential ‘’ victims’’ hire this expertise to protect themselves from criminal elements.

Likewise, the general movement towards privatizing hitherto state run domains created an atmosphere among decision makers that has proven supportive of privatizing war related functions, thereby paving the ground for PMCs to offer their services within the realm of these formerly public domains( Ibid). Privatization was complemented by another trend that started in the 1980s mainly within the corporate realm, namely the outsourcing of all operations that were not directly related to the core business of respective enterprises. This strategy of outsourcing has found many advocates in the defense sector, particularly in the United States and the United Kingdom.

Hence, this industry can be categorized as military provider firms; military consulting firms and military support firms. They engage in a number of activities that include combat operation; strategic planning; military training; intelligence; military logistics; and information warfare. May PMCs as well as their clients studiously avoid the term’’ military’’ and prefer the term’’ security’’ instead, for it has a less bellicose and more legitimate to ring it. The majority of the PMCs also refrains from openly promoting combat expertise and rather claims to provide advisory and consulting knowledge (Black water, USA). However, PMCs engage directly in combat operations. Even when they do not, they often operate or find themselves in the area, in which combat operations are taking place, or they provide services that are critical to the military mission, although physically rendered outside the combat zone.

State Responsibility

In international law, state responsibility arises whenever a state breaches an international obligation (Chorzow Factory, 2004). State responsibility , in the words of the Permanent Court of International Justice( PCIJ)’’ a greater conception of law’’, entails the state’s duty to make reparation for any breach of an engagement’’. Such a breach is termed an intentionally wrongful act’’ in the Draft Articles on the Responsibility of States published by the ILC.

Two cumulative requisites must be satisfied for a state to incur international responsibility for the conduct in question: the conduct must be attributable to the state and must violate an international obligation of the state (Wallace). It is generally accepted under customary international law that the conduct of the government…. Political subdivisions….organs…. and agents…acting within the scope of their employment is attributable to the state. The conduct of private persons, however, is generally not attributable to their state of nationality. Where are PMCs placed in considering this clear legal assertion? This is the subject to consider in this study. It will also look at the exception to this rule’’ if the specific circumstances of a case demonstrates a link between a private person’s conduct and the state, which justify an assumption that the private conduct in fact equals that of the state (Townsend, 2006). These are the key issues to consider in the study of ‘’ outsourcing the military use of force: responsibilities of states and international organizations under international law.

STATEMENT OF THE PROBLEM/ RESEARCH PROBLEM

A basic argument that motivates this focus is that the outsourcing of security changes the basis for public or state control of the instruments of force and use of force. Jack Straw once asserted in 2000 that:’’ the control of violence is one of the fundamental issues, perhaps the fundamental issues in polities’’. According to realists’ conceptualizations or descriptions of the modern state, it is essentially’’ the only legitimate wielder of force in society’’ (Buzan, 1998). The monopoly of violence is portrayed as ‘’ the hallmark of the state’’ and if not the defining characteristics of sovereign statehood that sustains the states position as the principle activity in the international system (Thomson, 1994:1511).

Consequently, the use of armed force and the waging of war are essentially understood as affairs of state and of tax financed agents of the state institutions such as the police and the military( Singer, 2003). In a similar view and essentially as a result of its monopoly of violence within its territory, the state is considered the chief provider of protection against internal and external threats to society and citizenry and from this perspective, Waltz (1979) blatantly concludes ‘’ citizens of states need not defend themselves, public agencies do that’’.

The recent development of non-state actors forms of security and protection poses serious challenges to these state centric or realist conceptualization of the modern state and particularly to the enduring and prevalent ideas about the monopolistic relationship between state and violence. This means that the roles and functions conventionally attributable to the sovereign state and its institutions need to be reassessed. Not only does security privatization corresponds badly with Weberian conceptions of state monopoly of violence, it also calls into question widely conception and perceptions about the states exclusive role in the security sphere and realists or ‘’Clause witzian’’ views of wars and warfare as being to the domain of states and national armies.

Expressed differently, it has been argued that with privatization, the assumption that the control, sanctioning and use of force fall to states’’ being increasingly difficult to sustain (Avant, 2005:1). In this perspective, the outsourcing of military and security related tasks to private companies challenges state centric perspectives precisely because the control over and use of force fall not only to states and state institutions but sometimes to private security companies in the hire of state agencies or other private companies. On a general level then security privatization leads to the question of changes in and challenges to the relationship between the state and violence.

Considering the current security problems in some parts of the world, which have weak governments and poor economies, it can be said that demand for PMCs will not diminish in the following few years to come, but rather is likely to increase. However, reliance on PMCs runs the risk of undermining the integrity and the effectiveness of the military for three prominent reasons. First, PMCs appropriate the human capital of militaries by offering heavily trained officer corps higher salaries. Second, advanced technology and expertise that PMCs provide keep militaries from generating their own capacities internally. Third, PMCs weakens the integrity and the effectiveness of the military by employing subcontractors that the military would not normally wish to work with (Minnow, 2007).

In addition to all the foregoing, governments may lose control over their activities under the layers of contracting and subcontracting. From governments’ perspectives, reliance on PMCs runs the risk of indirectly employing personnel who would normally be employed, because PMCs are not restricted to employing subcontractors

Inadvertently, the outsourcing policy has contributed to various institutional inefficiencies. Not knowing how largely they rely on PMCs, agencies miscalculate many aspects of contingency needs. Predictably, the results have often been fraud and waste. On the other hand, bearing financial concerns, major PMCs mostly subcontracted smaller PMCs that poorly performed their tasks. The subcontractors have generally been either third country nationals, or locals, who demand lower salaries. They are cheap, not properly trained and had least military experience. Thus, subcontractors had many negative impacts on governmental and international organizations. Due to subcontracting, governmental agencies have not only lost control over PMCs, but also unintentionally turned out to be less efficient organizations.

This study explored the inherent problems in the subject matter and clearly come out whether state and IOs lose sense of responsibilities when they outsource military use of force.

SIGNIFICANCE OF THE STUDY

Utilizing PMCs to provide security and some logistics functions in support of stabilization and reconstruction efforts has increasingly become a noteworthy issue in the United States and in many other nations and organizations including the United Nations.

Private security dates back to the beginning of civilization. In the past, soldiers for hire have been called many names: soldiers of fortune, condotierri, free companies, freelancers, Julius Caesar and dogs of war. In a sense, the most significant factor that caused the formation of modern nation state was the cost of war. In an anarchic international system, a sufficient amount of capital and large population were so critical that without them it was difficult for any state to provide its citizens with security and to survive as a foreign entity.

The significance of this study is attached to the importance of the rise of outsourcing of military services to PMCs and the responsibilities that might arise under international law from the privatization of the military use of force. In the course of the three centuries preceding the end of the cold war, the use of military force had become a monopoly of nation states (Sapone, 1999).

Since the end of the cold war, however, a trend can be observed towards the increased privatization of military services both on the demand and supply sides of the use of force. The end of the cold war contributed to the surge of PMCs, profit driven firms that offer military services necessary for armed conflicts. The phenomenon of outsourcing military tasks to these private firms significantly impacts on the way wars are planned and waged.

The prevalence of these firms in recent armed conflicts raises questions about the legal implications which the decision to outsource military force to private corporations might entail. Therefore, the significance of this study will explore the responsibilities of the States and International Organizations that arise in connection with the use of PMCs, which phenomenon is new to many in state and international organizations’ bodies. Does this arrangement make states more relax in their function of monopoly of the tools of violence in creating public order in trouble hot spots? It is a matter of significance and justification for the study.

OBJECTIVES OF THE STUDY

The study focused on the following objectives:

1. To explore which responsibilities States and International Organizations incur under international law if they outsource the use of military force to PMCs;
2. To examine the roles that PMCs play in current stabilization and reconstruction efforts when military use of force is outsourced to them;
3. To recommend the solutions to gaps existing in outsourcing of the military use of force to PMCs.

RESEARCH QUESTION OF THE STUDY

The study was guided by the following research questions:

1. What responsibilities do states and international organizations perform when they outsource the use of military force to PMCs?
2. What tasks should be given to PMCs when States and International Organizations outsource to them the military use of force?
3. How can the gaps be addressed so that stabilization and reconstruction efforts are not undermined?

SCOPE OF THE STUDY

The study was based on a comparative study of major powers and international organizations engaged in conflict areas of Iraq and Afghanistan which have outsourced their military use of force to PMCs.

It also focused on the following issues:

Categorization of the industry and the services that they offer to their clients. This will include combat operations, strategic planning, military training, intelligence, military logistics and information warfare. Also categorization was looked at in terms of military provider firms; military consulting firms and military support firms.

It also looked at the impact of the industry in stabilization and reconstruction efforts in the conflict areas; how the PMCs and their employees are looked by other stakeholders in the industry (that is to say, are they mercenaries or not?)

Lastly, the study focused on the major powers and international organization engaged in the outsourcing of the military use of force to PMCs in terms of how they regulate and monitor the firms given the sensitive business of instrument of coercion to ensure stabilization and reconstruction efforts.

THEORETICAL FRAMEWORK

The study was based on the theory of ‘’ the tip- of – the spear typology’’ as developed by Singer (2003). It uses the spear as a metaphor to classify types of PMCs or their operations. The tip of the spear reflects the front line, that is,’’ the area of operation’’ in which the actual fighting takes place.

Using the metaphor, one can place military units, as well as PMCs, along the spear to visualize the growing distance from the tip of the spear, that is, the frontline. In this way, three general types of PMCs can be distinguishable: military provider firms; military consulting firms and military support firms.

It is important to bear in mind that, however, that some of the PMCs are not clearly placed in one of these categories but rather on the borderline between two of them. Others may offer services in more than just one category.

Military provider firms are found at the tip of the spear. They provide tactical solutions for the armed conflict and engage in active combat, either as line units or specialists and or indirect command and control of field events. Provider firms tend to offer either overall unit packages or specialized force multipliers. When offering ‘’ overall unit packages’’ the PMC supplies the client with a standalone tactical military unit, thereby not contemplating an existing army but rather offering an alternative or substitute thereto. When used as ‘’ force multipliers’’, PMCs’ employees play active roles alongside those of the client, but in a way designed to make overall combination more effective. Clients of military provider firms are likely to find themselves faced by’’ immediate high threat situations’’ without military force capable of dealing with this situation.

Military consulting firms. Firms in this sector specialize in training and advising their clients’ armed forces which are often in a process of reorganization, that is, in a situation in which the client seeks to enhance its military capabilities and draws on external analytical and advisory support on the strategically, organizational and operational level. Clients of military consulting firms do find themselves in less imminent threat situation, and the relationship between customer and firm is frequently a long term one.

Military support firms. PMC operating in this sector offer a broad range of supportive services that are not regarded as forming’’ part of the overall core mission of the client’’. Services include logistics, intelligence, technical support, supply and transportation. They are able to specialize in these supportive activities to an extent that would not be sustainable for the military. These firms don’t take part in the active conduct or planning of the fighting. Their services, however, are crucial to the overall success of the military campaign. Moreover, they are not safe from combat threats either, as evidenced in the recent Iraq war and subsequent operations. Clients of military support firms are likely to be engaged in long term interventions. In such situations, military support firms can provide the ‘’ surge capacity’’ needed by the client to stage an intervention.

In brief, the study of Singer and his theory as examined above guided the pattern of this study.

CHAPTER 2
LITERATURE REVIEW AND THEORETICAL ANALYSIS

Definitions of PMCs

Some scholars define private security as any activity that is undertaken by a company protect a ‘’ noun’’, that is, an individual, a place or a thing (Schwartz, 2009). Many others make a broader definition that covers some other key services such as presenting intelligence analysis, operational coordination, and training of security forces (Ibid).

The National Defense Authorization Act for fiscal year 2008 describes private security as functions associated with protecting individuals, facilities or properties, or any other activity for which contractors are obliged to carry weapons.

International law is rife with conventions that define mercenaries; nevertheless, written documents that seek to define PMCs are scarce. The Geneva Conventions, which are the only globally accepted documents that established norms for humanitarian treatment of victims of war in terms of armed conflict, define the term mercenary, which had historically played a significant role in warfare; but, however, does not define the term’’ private military company’’ which is relatively new phenomenon for international law. Although Article 47 of the Geneva Convention’’ deprives mercenaries of the privilege to serve as lawful combatants and immunity to be treated as prisoners of war upon capture (Todd, 2003), there remains confusion about whether PMC represents ‘’ a new form of mercenary activity (Monograph Series, 2008)’’.

The Montreau Document which was signed in 2009 by seventeen countries is currently the most comprehensive effort to define PMCs. It is not a binding document, but an advisory document that promotes best practices regarding the utilization of PMCs by States. According to the Montreau Document, PMCs are… private business entities that provide military and security services, irrespective of how they describe themselves. Military and security services include in particular, armed guarding and protections of persons and objects, such as convoys, buildings and other places; maintenance and operation of weapons systems; prisoner detention; and advice to or training of local forces and security personnel( Montreau Document, 9).

Functions of PMC

PMCs perform a wide variety of functions in different states and on behalf of different entities. However, in this proposal, PMCs are conceptualized as alternative service providers, which are contracted out by the governmental agencies and international organizations to perform various functions on behalf of government or international organizations in contingency operations in war zones. In this regard, any private firm that executes at least one of the tasks that are mentioned above will be considered a PMC. Therefore, the definition that the Montreau Document presents will provide the basis of this study.

Contemporary PMCs operate globally and the USA Government has made extensive use of their services in the ongoing conflicts in Afghanistan and Iraq. There may be as many as 20000 PMC employees in Iraq alone (Singer, 2003). This is equal to the number of uniformed US military personnel in all of Afghanistan. The omnipresence of PMCs seems to indicate that at least some USG leaders believe that PMCs operate as legitimate businesses. If this is truly the case, then could PMCs do more to help the US military? These PMCs probably could not be mobilized to fight North Korea or Iran, but they could be used to help fight some of the small wars in which the US sometimes gets involved, so that the US military’s conventional forces could be held in reserve to fight major conflicts.

The journalist Max Boot offers the concept of creating a ‘’ Freedom Legion’’, similar to that of the French Foreign Legion, to serve the USA. This unit would consist of internationally recruited individuals vying for US Citizenship, which would be granted after a predetermined term of enlistment. It would be led by serving US officers and noncommissioned officers. The creation of the legion would help with the US military recruiting goals and the freedom legion would be the perfect unit to employ in places such as Darfur that are not critically security concerns but that cry out for more effective humanitarian intervention than any international organization could master. US politicians so wary and rightly so of casualties among US citizens might take a more lenient attitude towards the employment of a force not made up of their constituents (Boot, 2005a).

Risks Associated With Reliance on PMCs

In his book, Private Sector, Public Wars, Jay James Carafano emphasizes the increasing US reliance on contractors by these words:

In Vietnam, for every one hundred soldiers one contractor was employed. During the Gulf War (1991), one contractor was on the battlefield for every fifty soldiers. During OIF, contractors made up one out of every ten personnel. Only six years later, one contractor supported government operations in Iraq for about every 1.5 soldiers.

There are many reasons that the developed states and international organizations rely on PMCs in contingency operations. For instance, PMCs can be quickly mobilized and demobilized and they may free up military personnel to focus on offensive combat operations (David, 2010). However, reliance on PMCs runs the risks of undermining the integrity and the effectiveness of the military for three prominent reasons. First, PMCs appropriate the human capital of militaries by offering readily trained officer corps higher salaries. Second, advanced technology and expertise that PMCs provide keep militaries from generating their own capacities internally (Minnow, 2009). Third PMCs weaken the integrity and the effectiveness of the military by employing subcontractors that the military would not normally wish to work with (ibid).

PMCs and militaries are in a sense rivals, since they both rely on the same human capital that performs close missions. PMCs usually specialize in a particular area. They employ personnel who have considerable expertise and experience in that area. Most of these personnel are former soldiers, who were trained in militaries. PMCs offer generally attractive salaries to talented officers, who retire to begin a new career. The better paying alternative sometimes appeals to these officers, motivating them to retire from the military earlier than they had planned. In turn, they leave the military in order to earn much more money in the private sector.

Broadly speaking, reliance on PMCs for advanced and sophisticated weapons and technology and logistics system prevents militaries from developing their own capacities. This weakens the military strength, leaving them vulnerable to risks related to sustainability, maintenance, and control. Asymmetrically established contracts, which provide a highly specific asset under a highly unpredictable environment where management and oversight becomes difficult for the principal, are likely to put the principal into a disadvantageous position. It is likely that a PMC, which has a logistical contract with State, may reject to escort a logistical convoy, compensating for failing to pay for its subcontractors. This PMC may leave the troops on the ground without food and other critical supplies, such as batteries and oil. In sum, PMCs may put the mission and the troops in danger, and thus undermine the integrity and effectiveness of the military.

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