Interview of Polly Higgins ― Resistance Radio

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Hi, I’m Derrick Jensen and this is Resistance Radio on the Progressive Radio Network. My guest today is Polly Higgins. She is an international lawyer, UK based barrister, award-winning author and lead Ecocide law expert. Her proposal to expand the remit of the International Criminal Court to include Ecocide as an international crime (to stand alongside genocide, war crimes, crimes against humanity and crimes of aggression) will ensure global governance and protection against some of the most egregious crimes, namely State and corporate crime that causes or fails to prevent climate disasters as well as other ecological catastrophes. Polly has been hailed as one of the World’s Top 10 Visionary Thinkers by the Ecologist and celebrated as The Planet’s Lawyer by the 2010 Change Awards. Founder of the Earth Law Alliance, she has garnered a number of awards for her work advocating for a law of Ecocide.

So first, thank you for your work, and second, thank you for being on the program.

PH: Well thank you! It’s a delight to be on it.

DJ: So let’s just start off with a definition of “ecocide.” What is ecocide?

PH: What I’ve done is I’ve given legal definition to the word. The word itself has actually been around since the 1970’s. The definition I’ve given in law is ecocide is the extensive destruction, damage to or loss of ecosystems of a given territory. What I’ve actually done by giving it legal definition is also framing it to become an international crime. Because at the moment it’s not a crime to cause mass damage and destruction to the earth. So we’re missing law here, right? To criminalize the serious crime being inflicted through essentially state-sanctioned industrial activity. At the moment, what is happening is, in effect is state-sanctioned industrial immunity. Immunity from prosecution, which means that business, and not just the corporate world but also governments, are able and capable of continuing this ecocide without being accountable within the criminal courts system itself. So you have this kind of upside down scenario where activists who are standing up to protect their patch of the planet are the ones who end up criminalized and being taken to court for preventing the dangerous industrial activity that has the state’s approval to move forward, regardless of how serious the harm is that’s occurring.

This of course has huge implications for climate change, climate change being driven by dangerous industrial activity such as fossil fuel extraction, amongst others. But also it has huge implications for holding the state to account for failing to take action to seriously abate climate change. So climate ecocide is part of this equation, how we bring climate change not so much to a standstill but significantly abate the most serious excesses of what is emerging here as a result of climate change that’s driven by human, specifically industrial activity.

DJ: So if we step away from the eco part of this, and step toward the legal part for a moment, what are some of your, the precedent movements that you look toward? Do you look primarily to the slavery abolition movement? Do you look primarily to the Nuremberg trials?

PH: Actually this is really interesting. And you’re someone who’s really investigated in America, you know, those kind of resistance movements that have really brought about seismic change. In Europe, the starting point, in fact it was Britain, was the abolition of slavery. I really do believe that we’re looking at something on the scale of the abolition of slavery when we’re dealing with ecocide. But also it’s just not the parallels with then, and indeed what was very interesting with slavery was big industry saying you can’t stop slavery, it’s a necessity, stopping it will lead to economic collapse, and in any event the public demands it. Those three key propaganda statements were proven to be wrong, of course, with the abolition of slavery. Once it’s criminalized things actually change very very fast.

But also I’m very much informed by the likes of Rafael Lemkin. He was the lawyer who got on a soapbox and advocated that genocide should be an international crime. And indeed, after World War II it was codified as an international crime. That was when we codified international crimes. And the journey that he took was very similar to the one that I’m taking, not least of all because when he first did start getting out there and kind of banging his drum, he was told he was absolutely crazy and that it would never happen, and indeed when I first started advocating that ecocide should be a crime I had many lawyers and non-lawyers around me saying that as well. And many of them now are coming on board to say that actually this is precisely what’s required, to unlock justice for the Earth and all who protect her.

DJ: So can you tell me about the process – I guess first, very briefly, on your own thought processes and how you came to the realizations that you needed to do this work, as opposed to somebody else. How did you get activated? And the second part of the question will be; you’ve talked a little bit about some of the prior examples but can you also talk about some of the challenges and successes that you have encountered as you have carried this movement forward?

PH: Yeah. What activated me into engaging with this to start with was as a practicing advocate, barrister we call it here, a court advocate, I was representing big transnational corporations in court and I was finding myself becoming increasingly concerned and uncomfortable with the fact that here were people I got on with perfectly well, but our values were so misaligned. There was this normative that it was perfectly acceptable to make huge profit out of industrial practices that were enormously destructive. And as I was beginning to engage with environmental issues more and more, and that had really started in my childhood, I was becoming increasingly dissatisfied with this narrative that I was hearing from others that culture will kind of magically work it out. For me, that was hugely unsatisfactory, and I still see it with some of my friends who are quite spiritually engaged, that if we just kind of hope and pray we’ll get there. I don’t agree with that. It’s maybe just the way I’m wired, but actually this is really strategic for me. Unless we fundamentally realign law – the law, at the moment, is prioritizing profit over the interests and health and well-being of people and planet – then we will continue on with that normative.

So I’m very interested in how we disrupt that normative through realigning law. And for me this is realigning human law ultimately with a higher law that starts with the premise of “first do no harm.” Now that might seem absolutely naive and wide-eyed and stupid, but in truth there’s something far more important here, the recognition that in law we draw a line where we say “we can’t cross here, this is fundamentally unacceptable.” And that’s what criminal law is all about. It’s about justice. What is it that’s going to cause serious harm? And if so, we have to stop that. We got to a certain point where we recognized that actually, enslaving blacks was wrong, was inherently wrong. And there is a phrase in law that we have, when malum in se becomes malum prohibitum, when something is so wrong in and of itself. And so this is a fundamental recognition that it’s so wrong, in itself, to keep on destroying the earth, whether or not it’s for profit. The fact of destruction per se is inherently wrong.

So my starting point was really coming from a place of a deeply embedded intrinsic value within me of, actually, the interconnectedness of life. If we destroy Earth, we destroy our own health and wellbeing. If we destroy Earth we destroy the health and wellbeing of all Earth. By destroying Earth we destroy the health and wellbeing of human as well as nonhuman life. And that cannot be right. It’s a recipe for disaster. Valuing being life-destroying over life-affirming is never going to serve people and planet to our highest purpose. So it seems to me common sense ultimately at the end of the day that we should have a law put in place that criminalizes the destruction of our ecosystems and holds industry, not just corporations but also governments to account at the very highest level for the decisions that they make, and also for the failure to take action where it is recognized that indeed harm is occurring.

DJ: Before we go to the second question, I just want to be clear. So are you saying that you would want to prohibit hurting or harming or in fact destroying life on the only planet that we know of in the universe that has life? That seems kind of crazy to me.

PH: (laughing) What I’m dealing with here is serious harm.

DJ: I was totally joking.

PH: (laughing)

DJ: It appalls and amazes me that you even have to make the argument. That’s the sort of sarcastic point I was making. “Oh wow. It should be wrong to actually harm life, do significant harm to life on the only planet we know of that has life in the universe.” What a novel idea!

PH: You would think.

Very interestingly, I’ve actually just read, literally today, that Chevron has agreed in court – this is a case in San Francisco that’s happening at the moment – they have agreed that human activity is changing the climate and that it warrants action. This is actually a seismic step in a courtroom for that to be admitted by one of the most destructive industries we have in the world. And how remarkable it is that that’s actually coming from within the destruction itself. When governments have only gotten as good as voluntary agreements such as the Paris Agreement, to agree that dangerous industrial activities are causing climate change.

If you like, law is having to play catch-up here. We’re way behind on where the majority of the world understands this to be. And it’s not really rocket science. We don’t have to go deep into science to understand the cause and effect that’s occurring here. And yet we still are in this situation where there’s a certain element of giving conflicting, confusing information going on, and propaganda, on what is harmful and what is not. Here in the U.K. we have a fracking industry that’s pushing as hard as it can, and a government that’s removed laws and paved the way to make it as simple as possible for the fracking industry to move forward, and hundreds and hundreds of activists being arrested and charged and taken to court for standing up and trying to protect that patch of the earth. This is something I and my team are addressing through our campaign.

But I’m really jumping ahead here. Derrick, here’s the thing. Yes, you have an audience that understands this. But actually the remarkable thing is that there’s still a world out there that is burying its head in the sand on all of this.

DJ: Oh, I completely agree. I’m sure it’s the same for you. Three quarters of my neighbors, or half of my neighbors, are the same.

PH: Well, I live on in an exceptional patch of the planet. I live in an incredibly ecologically oriented town called Stroud, which is really the heart of all ecological activity in the U.K. But yes, there’s a lot of the world out there that just refuses to engage on these issues, for whatever reason, whether it’s fear or lack of understanding.

But then again, there’s this other side to it. It’s those who do engage in it that do effect change, and they’re the ones whom I’m interested in. And that applies to, whether or not it’s ministers or state or grassroots activists, those who stand up and take action and perceive themselves as Earth protectors, or the ones who fundamentally are helping change this narrative, and helping pave the way for a new law to be put in place to protect the Earth and hold governments and big business to account on this.

DJ: I feel the same way. When I do a talk, say there are 100 people in the audience. I’m really talking to about three or four people, and everybody else, I’m just giving them “let’s have a nice night.”

In any case, the second part of the question was –

PH: And actually Derrick, they’re the ones – there can be just one or two people in the audience who can effect great change.

DJ: Yes. I don’t disagree at all.

So the second part of the question was: What are some of the, both challenges you’ve faced and successes you’ve had in – just a little bit of history in the actual movement to do this.

PH: Yeah. When I first started advocating this, which was about eight years ago, my biggest challenge really was that I was taking people on a narrative that hadn’t been heard before. And actually, to this day there still exists to some extent, where yes, there are hundreds of thousands of organizations out there, protecting the planet in one way or another. Save the whale here, stop this over there, the Amazon dam, what have you. Which is all good and well. Yet not one of them is saying “This is a crime, this has to stop, and this should be a crime.” So what I was doing was I was taking people on a kind of journey of demystifying how law operates. And often there’s a lot of fear as well, and cynicism as to how law operates, especially when we’ve dealt with 24 years worth of climate negotiations that are going nowhere. So even explaining to people how climate negotiations work, who finances climate negotiations; well that’s big business. It’s done on the basis of how many negotiators can you bring to the table? So inevitably you have this arm-wrestling that happens, political arm-wrestling at the lowest common denominator. When you have maybe a couple of thousand negotiators turning up, for instance, for the U.S., and smaller developing states may have one negotiator for five states, five countries.

Inevitably, when you have working group meetings at the interim climate negotiations running 34, maybe, interim working group meetings running in tandem, it’s absolutely impossible to have enough representatives attending the right meetings, and inevitably the ones that suffer the most are those front-line countries, those nations that are, you know, those little equatorial belts, tiny dots on the oceans that have rising sea levels and floods and what have you. So there’s an an enormous amount of cynicism that I’m having to counter, while I’m actually dealing with a completely different process here. With international criminal law it’s just one vote per member state. And when America isn’t even a signatory to their own statute and therefore has no say on this, this can be quite beneficial, especially under your political regime at the moment. Indeed, the small guys could take this law forward and tip the balance in a very big way, especially when you’re looking at 56 small island developing nations. That’s a huge amount of leverage, in essence, for something that is a kind of epic David and Goliath rebel alliance against the empire of greed scenario.

So that’s been a huge challenge, taking people on a journey of how this law can operate and why it operates in a very different way. Criminal law is a different level of government from soft law, international agreements such as the Paris Agreement. And indeed it’s very different from civil litigation, where individuals or communities are suing big business or suing governments. We’re dealing with what’s known as top tier governance where it’s about justice. When you criminalize something, when you outlaw it, then you’re holding individuals to account in a criminal court of law and they can be sent to prison for their actions, and companies can be closed down. That’s very different from civil litigation where at best a corporation ends up with a fine but can continue with business as usual, which often is too little, too late for the community that’s being severely adversely impacted ten years past, or hence, the case actually being brought.

It’s inherently unsatisfactory, the system we have at the moment, and my challenge is, of course, to take that law forward. And not just me. I have a team of fantastic progressive lawyers as part of my team, who offer their services pro bono. But actually, in truth the largest challenge I have is lack of political will. And the lack of political will from the countries that are most important in this, which are the small island developing states, is in part because of misinformation. I’m having to come on the back of legal advice being given to these small island developing nations where they are told that if they speak out against big countries, then they will lose their financing, and they mustn’t do that. And this is legal advice that’s being given to them, with the threat of litigation against these small islands. So I’m having to deal with a culture of misinformation and a lack of political will that’s born of fear of losing either their financial assistance that they already gained from various other countries, or the fear that they will be in some respect taken to court over it themselves if they dare to challenge the existing system.

So, it’s going in there and demystifying that, explaining that actually that’s illegal, for a country to threaten another country in that way, and indeed that the power lies within these small islands to take this law forward. My biggest challenge there is of course to finance that, because for most of these small islands, to attend meetings is just financially out, with their wherewithal. It costs on average, to bring a team of delegates from any given country to the annual Assembly of States Parties to the International Criminal Court, around 50 to 60 thousand euros, and that’s often way out of the reach of these small island developing states, especially if they’ve just had rising sea levels or a tsunami or a typhoon kicking in that has wiped out the equivalent of 1/5 of their GDP and they want to put that money into rehousing the very people who require the law to protect them. So that’s why we’ve put in place now an international campaign, Mission Life Force, where we’re inviting existing earth protectors, those who are already out there helping protect the earth, to become an earth protector in law and sign up to the Earth Protectors Trust Fund, to finance those small countries.

And I guess part of that success is that we finally got that campaign off the ground in November last year, and on the back of it, within three weeks we were able to take a team of seven people to the United Nations for the annual Assembly of States Parties in New York in December, which was fantastic, to make representations. And this year we want to do it in a far bigger way, and that’s really about rolling out our campaign. We want to take it up a quantum leap. We want to get ourselves onto a bigger and better platform. It needs to be more secure. It needs a bit of backing, it needs a bit of help to really take this forward in a big way and accelerate what we’re doing. Because this is the thing: law is largely made now by the person who can pay for it. And that tends to be big transnational corporations. They have the funding, the finance to lobby the governments to get the laws in place, or to have the laws removed that they want, to move forward. That’s very much, from the mid-20th century, how laws end up being created.

There have been smaller wins by communities pushing forward, but never before has it been essentially crowdfunded to take a law forward into the International Criminal Court. And that’s what we’re doing with our campaign. We’re essentially crowdfunding it. We’ve put it on a legal platform, so it’s a trust fund document, and that’s to provide security and safety for those small islands taking it forward, so that they can never be legally challenged. It’s just a crowdfunder. That makes it more complex as well, inevitably. But we want to create a safeguard and safety for those countries that wish to take this forward and will be, in due course, committed to taking it forward. And I believe we can do that through civil society and in that way bypass corrupt governments who have vested interests in preventing this law from being moved forward.

DJ: As you were talking, I was thinking about, when you talked about how laws are made by the big players, I was thinking; this has to do with the absolute necessity of your work. I was thinking of a couple of jokes that I’ve told for years, that are not funny at all.

The first one is – they’re two riddles. The first one is: what do you get when you cross a long drug habit, a quick temper, and a gun? And the answer is: Two life terms for murder, earliest release date 2026. And the second one is: What do you get when you cross two nation-states, a large corporation, 40 tons of poison and at least 8000 dead human beings? The answer is: retirement with full pay and benefits.

PH: Absolutely! I’m completely there with you, especially if it’s two western states, yeah. Yeah yeah yeah.

DJ: And that was Bhopal and the CEO of Union Carbide.

PH. Yeah yeah yeah! Absolutely! And indeed there are many, many other examples as well. This is it: the law is upside down. This is a ridiculous scenario. This is exactly what’s occurring today and is a normative.

DJ: We can bring this up to date by saying: What do you get when you kill, I think it was eight workers on your oil platform on the Gulf of Mexico? You get, I think it was a $36 million severance package.

PH: Yeah. Which of course doesn’t help anyone. It’s a payoff to continue with business as normal. And it will happen again, and indeed has happened again in many other places around the world.

We held a mock ecocide trial. We road tested this as if it had already become an international crime, in our Supreme Court here in the U.K. back in 2011. And we used some of the brightest legal eagles that we have, top human rights specialists, Michael Mansfield QC and Chris Parker QC. They headed up the prosecution and defense teams. It was a real judge and a real jury, and we used as part of it, one of the counts on the indictment was the Deepwater Horizon oil spill, to examine whether or not that was an ecocide. And we were also looking at the Athabasca tar sands for two other counts.

And that was hugely instructive, because the evidence we used was evidence that was out in the public domain. And what we discovered was the Deepwater Horizon oil spill, the environmental impact assessment for that particular well was a generic environmental impact assessment that had been used to sign off on 500 wells.

DJ: Oh, if I recall correctly, they mentioned the impact on walruses.

PH: (laughing) Yes. But it didn’t actually address – in fact, one of the things it said three times in this environmental impact assessment was that the risk of anything going wrong was so small as to be de minimus, which means, in essence, “not worthwhile looking at.” So it didn’t have to be addressed. And on the back of that, billions of dollars were financing that project. So, of course, when something did go wrong, it took three months to do anything about it, which is an incredible scenario to have. Environmental impact assessments are meant to create some form of protection, but at the moment, because it’s not a crime to commit ecocide, you don’t have to ask certain questions in an EIA, one of them being what will be the consequences if something goes wrong? So it’s not a risk analysis that happens. When ecocide becomes a crime, it becomes a consequence analysis; and indeed, the person who’s signing off on the environmental impact assessment can be held to account in a criminal court of law if they haven’t investigated that. Which means then you have a completely different scenario playing out, where those who are hired to write the EIA’s make absolutely sure that they do address those issues, and certainly won’t sign off on them themselves, and you’ll have banks and investors not wanting to touch anything that could give rise to the consequence of a potential ecocide. So what you find is unconventional oil extraction just won’t survive under a different regime with ecocide as an international crime in place.

One of the challenges I discovered that predates my involvement was that ecocide was going to become an international crime back when the Rome Statute, which is the governing document for the International Criminal Court, was being drafted up. From 1985 to 1996 when it was being drafted, ecocide was to be included, alongside genocide and war crimes and crimes against humanity. But what we discovered after some credible research that was undertaken by the University of London, where they sent students into literally the basement of the United Nations to track records, was that at the eleventh hour ecocide was removed as an international crime. And in fact, we discovered just a couple of years ago that at the same time there were crimes of responsibility being drafted that were to do with holding governments to account for certain criminal actions, and ecocide was going to be included within that as well. Within six months of it being removed as an international crime, it also was removed from crimes of responsibility, state crime.

So there seems to have been a very concerted effort to have ecocide removed, and indeed we found records of the then-U.N rapporteurs who were so appalled at this being removed without any debate on it, without any discussion; it was just announced that it’s being removed – that they lodged into the U.N. basement their own opinion as to what had happened. And in their opinion, back in 1996, this was a result of corporate lobbying behind the scenes. We know that it was four countries that had wanted it removed, and that was the U.S., unsurprisingly; the U.K., my country; and also the Netherlands and France.

And in their opinion this was corporate lobbying from fossil fuel industry, the nuclear industry, and the genetic modification one as well. Because they were all industries that were going to be under serious threat of having to fundamentally rethink how they operate and in fact what they considered to be acceptable, and this would fundamentally change their industries overnight.

DJ: You know, that last story reminds me of a question I’ve been going to bring up, which has to do with part of Hermann Goering’s attempted defense at the Nuremberg Trials, which was that he tried to say, you know, “this whole trial is a sham because if Germany would have won, then we would not be on trial.” And in fact Stalin, Churchill, Roosevelt – “you could all be in the dock if you’d applied the same standards to yourselves.” And basically his argument, which the Nuremberg trial did not allow him to make, was that the victors declared the terms.

And so that’s one of the many, many reasons that I admire your work so much, is that you are going up against that power, as you work on the law.

PH: Yeah. In a way I am, and in a way I’m not. It still doesn’t get him off the hook. Yes, the victors did write it in their terms, but at the end of the day that doesn’t mean that he can slide on committing genocide. He can say “You did it too” and that’s a whole bigger discourse, of course. The interesting thing is, and in fact this was also what he put as a defense, and indeed many of them did, was that “I was just following orders.”

And that is actually very interesting, because yes, they were following orders. But it depends on what your state of mind was. Did you actually know what was happening and were you recklessly turning a blind eye? What was the intent behind this wanting to kill? The interesting thing of course with genocide is that it’s very specific in intent. Yes, you are, you’re wanting to kill a race, by dint of their beliefs. What we’re dealing with, with ecocide, is slightly different in that it’s not necessarily – it can be a crime of intent, but the starting point is recklessness, that you knew it was going to cause harm. And this is why it’s so exciting to read that Chevron just agreed in court that humans cause climate change. Because actually that’s a recognition of their own complicity in the harm. And that’s very intriguing.

I’m not sure whether or not Chevron have recognized just how important that statement is. From their own lawyer, in court. Because one of the things that, actually what’s happening here, and this – much as I’m very cynical about climate negotiations, what is very important to come out of that is that governments have signed off in recognition that climate change is human-driven by dangerous industrial activity. “Dangerous” is my word, but industrial activity drives instability in the atmosphere through excess greenhouse gas emissions. So for legal purposes, what we’re dealing with is the causality, the link and the knowledge behind it. So for instance Donald Trump may argue that because he’s pulled out of the Paris Agreement that he’s not hidebound by that. However, that doesn’t get him off the hook, because he has the knowledge. Whether or not he agrees with it is irrelevant, but he does have the knowledge, and you can say that objectively speaking, even if he claims he didn’t have the knowledge that climate change was occurring and that has arisen as a result of dangerous industrial activity, then he ought to have known, given how much it’s out in the public domain.

So this is really about how you bring a criminal court case. What are the elements of your crime that you have to establish? And the Chevron case – this interim announcement that’s just come out on this case is very interesting because actually it’s paving the way for criminal prosecutions further down the line.

DJ: So we have about five minutes left. Can you talk a little bit about how people, you know, somebody listening to this in Kentucky, or in Cambridge, can push these ideas forward? And then also what are your next steps?

PH: My next steps are actually fundamentally determined by civil society, if you like. What we’re wanting to do next is really bring together not just civil society but those kind of small associations and organizations that are fighting in their patches of the planet to protect them. And saying “Here’s the law that unlocks justice for all the work that you’re doing.” It unlocks it actually for the earth and all who are protecting her. I’m very interested in how we kind of weave together a kind of rebel alliance of those who are engaging with protecting the earth, and bring this forward and create that platform of support to take this law forward. And that’s what our campaign Mission Lifeforce is really about. Our challenge is actually a financial one, in truth. To really take this to a slightly higher level. But, you know, this is the really interesting thing. We actually did a kind of number-crunching exercise. We worked out that we’re probably looking at a $10 million campaign, which is tiny in the scheme of things. How much does it cost to make a Hollywood film these days? So we’re really interested in how we kind of bring those rogue funders to the fore, but also we’d like civil society to even engage with this for as little as five dollars, to put it into the pot. We want to map it, as well, because that creates its own safeguard, a safe space for these small islands to operate in. And start truth-telling about the situation. We’re going to go back into the Assembly of State Parties in December. We’re going to be more resourced and we’re going to tell stories about the pushback that happens from the states that don’t want this. And by doing that kind of truth-telling about the situation, it can act as a safeguard for those countries to know that actually they can operate here, they can take this law forward because civil society is with them on it. And I think this is going to be really important.

I mean, ultimately actually I’d like to see it go really big in America. I think it could be really, really exciting. There’s some amazing stuff happening in America at a grassroots level. And also there’s some really interesting cases happening. I just heard the other day; for the very first time activists fighting against the pipeline were successful in court in raising the defense of necessity. And that was accepted by the criminal court judge. That’s about being conscientious objectors. Here we’ve got activists whom we’re working with that are going to be bringing to court their right to freedom of conscience, just as the conscientious objectors used it during the first and second world wars, where they were imprisoned for this and some of them were shot. And how eventually then that became lawful to be a conscientious objector, and was enshrined in our Universal Declaration of Human Rights. That now, in the 21st century, our 21st century crime, instead of being genocide it’s ecocide, and instead of it being conscientious objectors, it’s conscientious protectors.

So there’s a kind of progressiveness happening, a progression in law where, you know, the most progressive lawyers and judges are beginning to recognize that it’s really important to stand up and speak out. And we really want to engage with those who are prepared to do that, in a big way. It’s not time to start another international negotiation. The Earth is not up for negotiation. This is time to draw the line in the sand and say “Enough. No more.” And make it a crime.

DJ: Well thank you so much for that. And thank you for being on the program. And I would like to thank listeners for listening. My guest today has been Polly Higgins. This is Derrick Jensen for Resistance Radio on the Progressive Radio Network.

(Sound of a tawny owl)

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