Global Policy Forum

Regulation and Oversight of PMSCs

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While there are a number of national and international laws that regulate the use of private armies, existing legislation was not created with modern private security contractors in mind.

International efforts to regulate the use of PMSCs have failed to effectively deal with many of the issues related to their use. The International Convention on the use of Mercenaries, ratified under the Geneva Convention, does not appropriately address the issue, mainly because its definition of “mercenary” is unworkable. The UN Convention against the Recruitment, Use, Financing and Training of Mercenaries from 1989 faces the same problem, as its definition of a mercenary is hardly applicable to current situations. The Montreux Document created in 2008 is the most recent international effort to regulate the private security industry, which was endorsed by 17 states with input from civil society organizations. While it is more robust than previous attempts to rein in the industry, the document is non-binding, which means parties have no obligation to follow the set of guiding principles it lays out.

National efforts intended to manage the use of PMSC, although commendable, are largely inadequate because of definitional discrepancies between countries. They also face a number of challenges due to the globalized nature of the industry.  Private security firms are often created, dissolved, branched, merged and moved from one location to another in order to make them more difficult to track down and regulate.

The private security sector has put forward Self-regulation as an alternative. Groups such as the British Association of Private Security Companies (BAPSC) and the US-based International Stability Operations Association (ISOA) claim that they seek increased harmonization of industry standards through voluntary codes of conduct. However, the ultimate punishment for any company found to have violated the code of conduct is expulsion, which is a weak deterrent to prevent abuse.



Documents


Montreux Document (October 8, 2008)

Ratified in October 2008, the Montreux Document lists 70 recommendations for private military and security companies (PMSCs) operating in armed conflict areas.  This document was created to address the lack of “accountability” for PMSCs and to create a system for states to implement “good” regulatory practices for PMSCs. These recommendations include how to correctly prosecute international law violations by PMSCs and how to verify the track record of different PMSCs. Although the document gives recommendations, it fails to outline specific obligations for states when hiring PMSCs, and actually lacks legal teeth.

International Initiatives

Articles

2013

War on Want has issued a press release about a conduct code for private military and security companies issued in Geneva. It warns that the privatization of war continues as a measure of profit seeking as the code issued is voluntary and allows non-participation.

United Nations' Unions call for action ahead of the 2013 General Assembly about the credibility of mercenaries being used to carry out security and peacekeeping work. Their call is based on a report published by the United Nations’ Working Group on the use of mercenaries, which reveals that the UN is increasingly outsourcing contracts for armed guards, convoy security, security advice, risk assessment and transport services. This report is supported by Global Policy Forum’s report on the use of Private Military and Security Companies by the United Nations.

Switzerland Checks Mercenaries, Partially (February 18, 2013)

The Swiss government is taking steps to regulate private military companies operating under its jurisdiction. The effort to pass domestic legislation coincides with Switzerland’s recent attempts to facilitate an international code of conduct for private security companies. Critics argue that the domestic legislation being proposed fails to adequately regulate the industry, leaving many ambiguities that could be exploited by contractors engaged in ethically objectionable activities. The Swiss government has been eager to establish a regulatory framework for the private military and security industry both within Switzerland and internationally. However, some observers fear that these efforts could simultaneously provide too much legitimacy and not enough accountability for this industry. (IPS)

A Global Compact for Mercenaries? (February 18, 2013)

The Private Military and Security sector has been a contentious topic in recent years. Some policymakers and civil society groups have sought to establish stricter regulations for this burgeoning industry. Others have rejected the legitimacy of the industry entirely, arguing that regulation would lend unwarranted legitimacy to mercenary activities that should not be permitted at all. In 2010, an international code of conduct was established and has been championed by the Swiss government as part of the Montreux process aimed at regulating PMCs. Negotiations in Montreux between industry, governments, and civil society will endeavor to establish an oversight mechanism to provide the code of conduct with some limited enforcement capacities. This article discusses the Montreux process, highlights a number of contentious issues, and critiques some of the possible shortcomings of this regulatory initiative. (Laws of Rule)

Lawbreakers at War: How Responsible are They?

Soldiers in combat are subject to international law, which provides mechanisms for prosecuting violations. As David Isenberg writes, the military chain of command is an important aspect of enforcing the laws of war, with commanders retaining a degree of liability for the misconduct of their subordinates. However, the increasing role of private military contractors has produced some legal ambiguities that are fuelling a debate about the responsibilities of private forces in conflict. Citing recent legal scholarship, Isenberg suggests that the legal precedents applied to national military actors may provide the groundwork for establishing the legal responsibilities of private military contractors when they are implicated in violations of international law. (Time)

2012

Private Military and Security Companies in Somalia Need Regulation, Says UN Expert Group (December 18, 2012)

The increasing privatization of Somalia’s security might drastically harm an already fragile state, especially if private military and security companies are not bound by strict operating regulations. The South African personnel of Sterling Corporate Services, a PMSC registered in Dubai that was found to have violated the UN arms embargo, has trained the Puntland Maritime Police Force (PMPC) to fight piracy in the region. Yet, the PMPC is reportedly operating outside the Constitutional framework for security institutions in Somalia while being involved in operations unrelated to piracy. Faiza Patel, the Chairperson of the UN Working Group on the use of Mercenaries warns that “as Somalia rebuilds its security institutions, the Government should ensure that private security forces are properly regulated and do not become a substitute for competent and accountable police.” (Office of the High Commissioner for Human Rights)

The Challenges of Maritime Private Security Oversight (December 2012)

Faiza Patel, Head of the UN Working Group on the Use of Mercenaries, denounces the increasing presence of private military and security companies in zones of conflict around the world. Taking the example of post-conflict Iraq, she believes that PMSCs “are likely to remain a feature of both war and peace, diversifying into markets ranging from guarding ships in the Indian Ocean to spying in East Africa.” While “the international community [still] lacks the tools and political will to control them or bring them to book”, only a clear and binding international jurisdiction will make them accountable for their potential violations of human rights in times of war. (Public Service Europe)

The Explosion of Private Militaries and Mercenaries, Post-Iraq (September 25, 2012)

Faiza Patel, Head of the UN Working Group on the Use of Mercenaries, denounces the increasing presence of private military and security companies in zones of conflict around the world. Taking the example of post-conflict Iraq, she believes that PMSCs “are likely to remain a feature of both war and peace, diversifying into markets ranging from guarding ships in the Indian Ocean to spying in East Africa.” While “the international community [still] lacks the tools and political will to control them or bring them to book”, only a clear and binding international jurisdiction will make them accountable for their potential violations of human rights in times of war. (Public Service Europe)

A Humanitarian Perspective on the Privatization of Warfare (September 14, 2012)

Private Military and Security Companies have been in the limelight recently for the excessive use of force resulting in civilian casualties. Their activities extend from monitoring detention facilities in conflict-zones such as Iraq and Afghanistan, to anti-piracy operations on the high seas. This privatization of warfare is accompanied by a lack of accountability. The ICRC looks to International Humanitarian Law to address this problem. PMSCs act outside the military chain of command and are often exempt from the laws of the contracting states. In regard, the ICRC highlights the existing Montreaux Document of 2008, which proposes accountability guidelines as one of the possible solutions to the problem of PMSCs. (ICRC)

Ex-Navy Officers Take on Pirates (September 12, 2012)

The use of private security companies has expanded beyond Iraq and Afghanistan and onto the high seas. Now joining British and US private contractors are those from Australia and New Zealand, “because their military training is interoperable with the US and UK'', according to military analyst James Brown of the Lowy Institute. With 2700 armed guards hired to secure merchant ships against piracy on the Indian Ocean, there is a risk of a ''mini-arms race'' developing between pirates and the private security operators, said Brown. This is particularly relevant with regard to Somalia, where raiding parties extract millions in ransom money for captured ships, thereby attracting investors to fund piracy operations for the profits. This article highlights that outsourcing private military personnel to perform anti-piracy operations raises questions of jurisdiction and accountability. (Sydney Morning Herald)

Australian Accused of Funding Private Somali Army (September 4, 2012)

In its latest report, The Somalia Monitoring Group at the UN looked at the case of Mr. Luitingh, a former mercenary in the South African apartheid era who also a prominent member of both Saracen and Sterling Corporate Service, two private military companies used extensively in Somalia. According to the group, Mr. Luitingh has been responsible for assisting, training and supervising security forces to carry out "the most brazen violation of the arms embargo by a private security company". Luitingh, currently based in Sydney, is using Australia as the financial hub for money transfers that connect back to his activities in Somalia. Formerly known for his company’s illegitimate involvement in Papua New Guinea, Luitingh is now being closely watched by UN investigators. (ABC News)

What Now for the World's Biggest Security Company and Its Critics? (August 24,2012)

The increased privatization of security poses a grave threat to the future of public safety. G4S, the world’s largest Private Security Company, has received heightened media attention in light of its recent failure to provide an adequate security workforce at the Olympics. But G4S had a long record of negligence prior to the Olympics debacle. This year alone, G4S will pocket £1 billion of UK taxpayers’ money from reliable long-term contracts with the Home Office, the Ministry of Justice, the Department of Work & Pensions and local Police Authorities. Private security companies’ profits continue to soar and their misdemeanors to be met with increased impunity, making a democratic review of these services increasingly necessary. (Open Democracy)

PMSCs and the Arab Spring (August 27, 2012)

The United States has nurtured the private security industry, not just within Iraq and Afghanistan, but also across the Arab world, but the role played by PMSCs in the Arab Spring has been largely overlooked. The governments of Libya and Bahrain, fearful that local armies might harbor grievances against them, have made extensive use of these private security contractors to quell uprisings by civilians and opposition groups alike. This serves to undermine grass-root democratization efforts in the Middle East. With the UAE leadership now forming ties to former Blackwater owner, Erik Price, this article questions proxy role of the United States in the Arab Spring.(Huffington Post)

UN Embroiled in Private Security Controversy (August 17, 2012)

Global Policy Forum’s report “Dangerous Partnerships”, released last month, has sparked a debate about the use of Private Military and Security Companies by the United Nations. The UN Department of Safety and Security (DSS) has rejected the report’s conclusions as ‘unfounded’, but has failed to provide the public with actual numbers because there is “no centralizes process” to deal with PMSCs within the UN. Requests for comments from journalists have been met with silence and the UN has thus far refused to shed light on its contracts with PMSCs.(Media Global News)

Reining in Private Security Faces Regulatory Thicket (August 14, 2012)

In mid-August, an intergovernmental Working Group of the UN Human Rights Council (UNHRC) met to discuss the creation of a potential convention for the regulation of Private Military Security Companies. A number of initiatives to make PMSCs more accountable are underway, such as the voluntary Code of Conduct for Private Security Providers (ICoC) and the UNHRC’s recent draft convention, but complex and worrying regulatory challenges remain. As transnational corporate use of force becomes common practice while cases of human rights violations are increasingly reported, GPF stresses the urgent need for binding international regulation. The UNHCR decided to extend the discussion to future meetings but member states remain deeply divided on the matter. (IPS)

The Role of Private Military and Security Companies in Modern Warfare – Impacts on Human Rights (August 11, 2012)

Gross human rights violations have brought the use of Private Military and Security Companies as a tool of foreign policy, into the limelight. Heavily armed forces with limited accountability are the outcome of an increasingly privatized security sector. Violations committed by these forces outside of their home states are unregulated and go unpunished. PMSCs put the security of their own forces as well as that of civilians at risk. In this article, Jose Gomez del Prado, former Chair of the UN Staff Working Group on the use of Mercenaries,explores the negative implications of using PMSCs in today’s globalized world.( The Brown Journal of World Affairs)

Profit and Security at the London Olympics (July 17, 2012)

G4S, the largest private security company in the world, fell short of providing an adequate number of security personnel for the London Olympics. The British Armed Forces are to fill in the void created by G4S. G4S’ failure to recruit sheds light on their underlying profit motive. G4S is doing less to pocket more, with little accountability. The privatization of security is in effect contributing to a ‘de-development’ of traditional government services. (Al Jazeera)

Militarizing the Olympics(July 13,2012)

In an attempt to tighten security before the Olympics, London has deployed five hundred FBI employees and over a thousand US officials. The security coordinator of this mission is (of course) G4S, a private security company infamous for human rights violations. Weapons and heavily armed security are being placed across the city to preempt attacks. Drones and surface-to-air missiles will also be used under the guise of ‘protection’. This wave of military mania is likely to attract attacks rather than prevent them. The militarization of the Olympics has prompted the author of this article to call the UK a “security state demonstrating pathological tendencies.” (Counterpunch)

New Study Notes Rise of Private Security Firms in Haiti Since Quake (July 9, 2012)

After an earthquake and a cholera outbreak, Haiti is now suffering from a rise in private security firms. The UN and other international NGO’s in Haiti make up most of the market for these firms. The dearth in Haiti’s national police force, with only 10,000 police in a country of 10 million, has left a vacuum filled by these companies. The rapid increase of private security firms in Haiti is a part of a larger, global trend that could prove to be dangerous in an already fragile county. (Associated Press)

Outsourcing Charity – The G4S Way ( 28 June, 2012)

G4S has signed a contract with Target, a UK-based charitable housing association for asylum seekers. G4S’ entry into the non-profit world involves the use of public funds. Charities that have adopted the privatized values of G4S are now aiming to secure profits themselves. Asylum seekers with limited housing options are caught in this trap. How long will it be before G4S completely outsources what is left of public services?(Open Democracy)

How G4S is 'Securing your World' (June 20,2012)

G4S’s global outreach is expanding at a fast pace. In the UK, which remains G4S’s largest market, the company is increasingly moving into what was once the public sector. Public services like policing, running immigration detention centers and providing security at schools and hospitals are now being performed by often inadequately trained G4S personnel. Operating in more than one hundred and twenty five countries, G4S can even be considered a “shadow state”. Critics have raised concerns about the absolute lack of transparency, improper public scrutiny and public outcry around the company’s activities. (Guardian)

Shooting to Kill Pirates Risks Blackwater Moment (May 8, 2012)

There is a rising demand for private guards to board merchant vessels and deter attacks from Somali pirates. But a lack of rules governing the use of weapons by private actors on the high seas complicates the matter. In 2011, the UN’s International Maritime Organization issued weak, non-binding guidelines for private armed guards, stating that they should use no more force than what is strictly necessary. It is often difficult to differentiate between fisherman and pirates on the high seas, and a void in international maritime law has created “shoot-first” situations that risk innocent lives. (Bloomberg)

Cheap Help from Uganda (May 2012)

By 2008, US private military companies, including Torres, DynCorp, Triple Canopy, Sabre, and SOC, had hired 10,000 Ugandans for work in Iraq. But Ugandans were paid less on average $700 dollars a month, while US workers were paid up to $10,000 dollars a month. Ugandans were often forced to work 15 hours a day under bad conditions with no job security. Many Ugandans couldn’t afford to complain or quit due to inflation back home. Some Ugandan workers referred to their situation as modern slavery. In this article, the author examines how the lack of regulation and oversight of private military companies operating in war-torn areas have led to labor-related abuses of hired third world nationals. (Le Monde Diplomatique)

What’s in a Name? That Which We Call a Roseatte PMSC (March 15, 2012)

Private military and security companies (PMSCs) who provide “armed guards” do not want to be confused with colonial-era mercenaries, even if they offer similar services. Most don’t even refer to themselves as “PMSCs”.  The largest US trade organization to support PMSCs describes the work their companies do as “international stability operations.” But there are economic incentives for PMSCs to avoid classification. PMSCs are often divisions of much larger corporations that have enough financial resources to hire people with skills to do just about everything. Corporatization of PMSCs also allows them to change names for public relations liability. Blackwater, for example, changed its name to “Xe” after “Blackwater” killed 17 Iraqi civilians in Tahrir Square. (Huffington Post)

State or Nonstate: Ay, There’s the Rub (February 14, 2012)

Even though PMSCs perform a public service, their actions fall outside of international law, for international law generally uses states as its basic unit of accounting. David Isenberg calls this dilemma an “accountability gap.” In this article, Isenberg explores the idea of making PMSCs an extension of the state that hires it if PMSCs meet certain standards. But the reason many states hire PMSCs in the first place is because the states themselves are not responsible for any of the PMSCs’ actions. It is unlikely that either actor will want otherwise. (Huffington Post)

US Control of Contractors in Iraq is Vital (February 1, 2012)

US diplomatic personnel in Iraq are protected by 5,000 private security contractors. In a 2008 survey, almost half of the US State Department personnel who interacted with private security contractors thought the contractors acted insensitively towards Iraqis and their culture. Contractors threw water bottles and other objects at civilians to clear them off roadways. This article published on The Hill questions the ability of private security contractors to properly protect US diplomats, and calls for US policymakers to increase oversight of PMSCs in Iraq. (The Hill)

You’re Nicked: Arrest on the High Seas (January 18, 2012)

New policies in the UK, US, and Denmark allow the use of private security guards aboard ships to help defend against pirates. UK Prime Minister David Cameron says that armed ships have a lower chance of being hijacked, and that Private Military and Security Companies provide a way to fight piracy. But there has been little guidance from the UN regarding the legal status of maritime PMSCs. Pirates are civilians under international law. PMSCs do not have the power to hold, arrest, or detain pirates like police officers, coast guards, and naval officers do, let alone use lethal force against them. (The Interpreter)

2009

Private Military and Security Firms and Erosion of the State Monopoly on the Use of Force (January 29, 2009)

In 2009 the Council of Europe raised concerns relating to the growing use of Private Military Security Companies (PMSCs). PMSCs are generally formed as profit seeking companies with vested interests in the outbreak and maintenance of conflicts. States and international organizations (such as the United Nations) are increasingly using PMSCs undermining the traditional position that States (acting independently or together) are the only actors legitimately permitted to use force. The Council of Europe recommended creating increased political control over PMSCs. This is difficult, however, as PMSCs operate internationally and their activities have transnational aspects and consequences, necessitating regulation at an international level. (Council of Europe, Recommendation 1858)

2008

Amnesty International Public Statement on the Montreux Document (October 14, 2008)

Following the ratification of the Montreux Document in October 2008, Amnesty International released this statement supporting and criticizing specific elements of the text. The Montreux Document provides states with recommendations and obligations for hiring private military and security companies (PMSCs). However, Amnesty International argues that the document conspicuously fails to require states to investigate PMSCs before hiring them. (Amnesty International)

States Clarify Rules for Security Contractors (September 17, 2008)

Seventeen countries including Afghanistan, China, Iraq, the UK and the US signed the Montreux document that outlines international humanitarian and human rights law, binding private military companies and the countries that hire them. Governments that use security contractors abroad wanted to clarify the rules for private military companies, especially after the Blackwater scandal where US security contractors killed 17 Iraqi civilians. (The Star)

2007

It All Makes Sense Now, Blackwater and the ICC (October 1, 2007)

In this article, the author speculates whether the US opposition to the International Criminal Court (ICC) was part of a long term plan to provide immunity to contractors working for or on behalf of the US in Iraq. The Hague Invasion Act was passed by the US Congress in 2002, prior to the invasion of Iraq, and prohibits US courts from extraditing any person to the ICC. The author cites numerous atrocities committed by private security contractors working in Iraq including Blackwater USA, to demonstrate how these firms operate without any accountability to the ICC. (Tonic Blotter)

National Initiatives

Articles

2012

IPCC Call for Powers to Investigate Private Security Firms (April 24)

The Independent Police Complaints Comission (IPCC) of England and Wales called for the UK government to allow them to investigate private security companies that carry out police duties. In 2012, the UK awarded their first contract for a private police station to G4S, a private security company with a questionable human rights record. The private police station operates in Lincolnshire, and appears to be the first of many. While new methods are necessary to hold private police companies accountable, the UK’s current climate of deregulation hints against government oversight. (Info4Security)

2011

Are Private Contractors Undermining the Intelligence Community? (September 22, 2011)

Joshua Foust, a fellow at the American Security Project, spoke in front of the Senate Committee on Homeland Security about the increasing number of contracts the US government awards to private companies for work in Intelligence. Past contracts use vague wording, which allows companies to avoid accountability and to focus solely on economic gains. Foust states that transparency within contracts is necessary. He also critically examines how the US government has come to rely on intelligence contractors in the first place. (American Security Project)

Bad Business: Billions of Taxpayers Dollars Wasted on Hiring Contractors (September 13, 2011)

This report by the Project on Government Oversight (POGO) compares the total compensation paid to federal and private sector employees to perform government contracts, questioning whether it is actually more cost-effective to “outsource” government worker. The report finds that hiring private contractors costs billions of dollars more than hiring federal employees. While the US government has argued that outsourcing certain services is more efficient and is beneficial to taxpayers, this report finds that using contracts increases costs for the taxpayer. Given the US’s current budgetary crisis, it is particularly relevant to highlight that a quarter of all discretionary spending goes towards service contractors. (Project on Government Oversight)

2010

Blackwater Indicted for Violating Federal Firearms Laws (April 16, 2010)

Blackwater, a private-security company, has been indicted for falsifying federal paperwork to conceal an armaments gift to Jordan's King, Abdullah II. The indictment highlights how Blackwater used, and probably still uses, illegal techniques to market its personal protection and military training services to foreign countries.

KBR on Trial - At Last (March 29, 2010)

Jamie Leigh Jones, an ex-employee of the private security company KBR/Halliburton, will finally get her chance for justice after five years. Jones alerted authorities five years ago that she had been raped and then imprisoned for three days by KBR employees. KBR used two methods to prevent Jones (and fourteen other similar cases) from getting to court. Firstly, a KBR-contractual requirement dictates that all complaints must go via a KBR dispute resolution program, not the national courts. Secondly, US courts are disinclined to pursue complaints from security companies, even though crimes committed in US military bases are legally within their jurisdiction.

2009

US 'Failing' to Oversee Contractors (June 11, 2009)

The Commission on Wartime Contracting in Iraq and Afghanistan has presented a report to the US Congress showing that "the environment in Iraq and Afghanistan continues to be a place for waste, fraud and abuse." Although costing tens of billions of dollars, 240,000 private sector employees are under minimum government supervision. The US government keeps no central records of dealings with the private firms. Private company KBR provides housing, laundry, meals and mailing service to the military but is under the supervision of only 13 government employees.

Blackwater: We Will Leave Iraq if US Orders it (January 30, 2009)

Blackwater, which has been operating in Iraq without formal license since 2006, states that it is willing to leave Iraq if ordered, but that such a move "would far more hurt the reconstruction team and the diplomats trying to rebuild the country than it would hurt us as a business." Blackwater's contract with the State Department accounts for about one-third of the company's overall revenue. Following a shooting in 2007 with 17 civilian deaths, the contractor has a reputation for "operating aggressively and with excessive force.

2008

State Department: Drop Blackwater in Iraq (December 17, 2008)

A report by the US State Department's Inspector General may recommend that Blackwater should lose its license in Iraq after the trial of six Blackwater officials for the killing of 17 civilians in Baghdad in 2007. US investigators say Blackwater guards were involved in 70 shooting incidents involving civilians before the 2007 shooting.

Iraq Case Sheds Light on Secret Contractors (July 17, 2008)

US contractor MVM Inc. is responsible for the personal security of US intelligence agencies in Iraq. A former MVM employee accused the firm of covering up a 2004 incident in which MVM employees opened fired on Iraqi civilians. The Iraqi parliament remains adamant that contractors like MVM and Blackwater must be held accountable for crimes committed against Iraqi citizens.

2007

House OKs Bill to Prosecute Contractors (October 4, 2007)

The US House of Representatives passed a bill in which all private contractors working in Iraq and other combat zones will be subject to prosecution by US courts. In a statement, the White House criticizes the bill as having intolerable consequences for crucial and necessary national security activities and operations. Despite opposition from the White House, the legislation signals a shift away from the immunity enjoyed by US contractors for crimes committed in Iraq.

Iraq to End Contractor 'Immunity' (September 25, 2007)

The Iraqi interior ministry drafts legislation responding to the shooting of 11 Iraqis by employees of the private security firm Blackwater. Commentators suggest the legislation includes provisions which will remove the immunity granted to contractors under the Coalition Provisional Authority laws. Under the draft, contractors will be monitored by Iraq's interior ministry, they will be required to adhere to set guidelines and they will be subject to Iraqi law. The draft legislation signals the intention of the Iraq government to control contractors, who many Iraqis believe are "private armies acting with impunity on their soil."

Security Firm Faces Criminal Charges in Iraq (September 23, 2007)

The Iraqi interior ministry is investigating a total of seven incidents involving the actions of private security firm Blackwater USA. Both the Iraqi and US governments are investigating the shooting of numerous Iraqi civilians in the Nisour area of Baghdad. The other six episodes being investigated involve the deaths of 10 Iraqis and 15 wounded in incidents during 2007. Iraqi officials say they will consider all seven incidents to determine the practical and legal consequences for Blackwater and other security firms operating in Iraq.


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