The tension between the non-fault principle and the basic need for justice in the dynamics of the problem solving workshop

By Xavier Velasco-Suárez

 

Final Paper for

PSYCHOLOGY 2600 (Spring 1998-99)

INTERNATIONAL CONFLICT: SOCIAL-PSYCHOLOGICAL APPROACHES
Professor Herbert C. Kelman and Dr. Donna Hicks

 


Introduction

The "non-fault" principle, one of the principles that are meant to regulate the interaction of the participants in a problem solving workshop, is defined as the ground rule according to which the parties commit not to attempt "to establish who is right and who is wrong in terms of legal or historical criteria" (Kelman, 1996 p. 106). At the same level, equality is defined as a another principle governing the interaction between the parties, according to which "within the workshop context, the parties are equal in the sense that both parties’ needs and fears are addressed and given equal weight in the deliberations" (Kelman, 1996 p. 107).

When one of the parties’ need for justice is advdanced as a claim for an admission of responsibility for past wrongdoings from the other side, there seems to be a clash between these two principles. Therefore, the third party is confronted with the necessity for a decision to give precedence to one of them or, in case that clash is only apparent, to inject in the discourse elements that enable the parties to continue the discussion in a way that makes both principles compatible.

The following analysis of the tension between the "non-fault" principle and the basic need for justice, is mostly based on the observations made at the problem solving workshop between Israelis and Palestinians that took place during the Seminar on "International Conflict: Social-Psychological Approaches" (Harvard University, Spring 1999). When I refer to the workshop, it is this workshop that I will be referring to. When I quote or refer to the "Workshop Notes" (WN), I will be referring to the transcript taken from this particular Workshop.

A turning point in the Workshop

The "non-fault" principle is oriented to promote a problem-solving mode of interaction, but there is some ambiguity in the formulation of this concept. . . "This is analytical discourse. We are not trying to establish right or wrong through ideas or right or wrong ideas of justice. Rather understand the perspective of each side without having to accept it. This will lead us into the problem-solving mode of interactive view of conflict as problem entered jointly therefore a joint process of resolution" (WN, page 6). The ambiguity stems from the necessity to relief the process from the awkward burden of historical and legalistic discussions, while keeping it open to an equal treatment of each side’s needs and concerns. "Another ground rule is equality around this table. I don’t mean to say there is equality in the real world –there are asymmetries. . . and different views. . . but in this room the two sides are equal in that each side has the same right to have their needs, concerns and fears discussed and seriously considered" (WN, page 25)

This ambiguity was exploited from the Israeli side for the benefit of keeping the issues under discussion within the frame of their own narrative. Need number 3 in the list agreed upon on the Palestinian side was expressed by PF as an "admission of the state of Israel that it has committed a crime during the establishment of state" (WN, page 70). To this IA responded "I am mad. . . Number 3 on your list comes from a one-sided view on the conflict and we cannot accept it. This is history. The way you present your needs is upsetting and it brings in history." (page 93).

In my view, there was a turning point at this moment. The process entered an impasse, and in a superficial look it would seem that the inability –or bare unwillingness– on one side to recognize one of the fundamental human needs of the other was the cause for this stalemate. This inability or unwillingness came shielded behind an allegedly implicit accord that banned the parties from discussing historical issues, understanding that might well be encompassed within the ground rule set as the "non-fault" principle.

This thus described tension, raises multifarious questions that fall close to the core of the Interactive Problem Solving approach to conflict.

The Human Needs Theory and its centrality to the Interactive Problem Solving approach to conflict resolution

The overall approach to conflict promoted by the theorists and practitioners of Interactive Conflict Resolution has, since its inception, heavily relied on the theoretical framework provided by what has come to be known as Human Needs Theory. The basic assumption underlying the seminal work of John Burton, is that protracted, deep rooted, social conflicts, find their origin and fuel in the insatisfaction of basic, or ontological human needs. Therefore, "fundamental to this view of conflict resolution seems to be the idea that only arrangements that fully satisfy BHNs can bring about any final resolution of the conflict -one which ‘deals fully’ with the issues in dispute and establishes a new, self-supporting relationship between the adversaries" (Mitchell, C. 1990, p. 152).

This being the case, it seems to me that a procedural ground rule such as the "non-fault" principle should give way to the consideration of so crucial a matter as a basic human need is. The "non-fault" principle, in the end, should never be an excuse to overlook the discussion of issues that concern the satisfaction of a basic human need of one of the parties. Then, a critical question arises: is this expressed need for "recognition of guilt for past wrongdoings" a basic human need? What are the basic human needs?

‘Need’ is a very strong word, which when equated with the adjectives ‘basic’ and ‘human’, conveys a sense of legitimacy very close –if not identical– to the concept of ‘inalienable human right’. It is not surprise then, when key theorists like Fisher, R. (1990) or Burton, J. (1987) use both terms -needs and rights- together as if they were interchangeable. Thus, when the Palestinians say "we need you to admit responsibility for past crimes", the Israelis are hearing "we have an inalienable right for you to be held accountable", and this is only one, and maybe not the gravest, of the transpositions that occur in the other party’s minds. (I do not intend to consider at this point the mental translations into "illegitimacy of the Israeli state", and into "admission to a right of compensation and return", that are immediate consequences that follow an admission of responsibility).

Therefore, the determination of what those basic human needs are becomes a highly convenient matter.

How to determine what a Basic Human Need is?

There is not such a thing as a definition of basic human need, despite the efforts of numerous theorists, entangled with descriptive approaches and tentative lists and classifications. Interestingly enough, however, there is not in the theory anything close to a consensus on a list of basic human needs. "If there is no such list, then efforts to develop a theory of conflict resolution based on removing the factors frustrating BHNs seems doomed to failure -or, at least, to a hit and miss strategy that can hardly be said to be based in sound theory" (Mitchell, C. 1990, p. 159-160). For reasons that I will describe further below, I do not quite agree with Mitchell’s perception; yet, I totally agree with the implicit assumption that there has to be a way to identify what those needs are.

Mitchell (1990) mentions a need for dominance; Vamik Volkan (1985) , a need for enemies as well as allies. Somebody else could argue for a need to win the lottery, and so on. In the operationalization of the human needs for the purpose of the Problem Solving Workshop, it does not seem to be any way to check the legitimacy of the expressed needs. In face of the frustrating difficulty in determining what those basic human needs are (Mitchell, C. 1990), there seems to be an implicit way out of the dilemma by adopting Galtung’s suggestion that it may not be reasonable to imagine "that a list of needs can be established, complete with minima and maxima, for everybody at all given social times and social spaces" (Galtung, J. 1988, page 131). Yet, the expression "basic human needs" itself strongly suggests some universal character implied in the concept, which might hint a way of reasoning that helps elucidate this question, putting an alleged need to the test of applying it to "everybody at all given social times and spaces". Needless to point out the difficulties in carrying out such a task.

Azar (1990) writes that "protracted social conflicts occur when communities are deprived of satisfaction of their basic needs on the basis of their communal identity" (page 12). This way of putting basic human needs, together with the statement in the previous paragraph arose an interesting question in my mind. Basic human needs can perfectly be universal, but the ways of their satisfaction can perfectly be "not universal". The ways of their satisfaction –as those of their deprivation–, as I see it, greatly depend on the basis of their communal identity.

We can understand that having a land where to live in, where they can give themselves their own rules –what Fisher (1990) describes as "undeniable right for a ‘place in the sun’" (page 93)–, is a basic and universal human need of any community. But does any piece of land satisfy the need of any community? It seems that the answer is "no", that there are in every community geographical, historical, cultural, educational and even emotional reasons that bind them to a particular piece of land. Therefore, although they are universal, human needs find satisfaction in very different "subjective" ways.

This brings us to the question of ‘satisfiers’, or what I like to call "instrumental needs", that are those meant only to attain the satisfaction of other deeper needs. Basic human needs, this is unquestionable in my view, are universal and translate into inalienable rights: they cannot be substituted. Instrumental needs, on the other hand, while supplying a clue for the satisfaction of basic ones, are susceptible to change from one human group to the other, or even from time to time in a same given group.

The Basic Human Need for Justice

Despite a striking absence in many lists of basic human needs, justice is clearly one of those indisputably profound aspirations in the human heart. Burton (1987) mentions it, Heraclides calls it "the craving for justice" (1988), and Kelman gives to it special consideration among the needs that have to be addressed in the process of Problem Solving Workshops (1996).

As I suggested before, there seems to be quite an intimate relationship between basic needs and human rights. I believe that here is the clue for that absence not to be so striking. Due to that intimate connection, justice is somehow at the core of any other human right, it is the axis for all human needs. Thus, when someone talks about a need for identity, it is implicit that it is considered just for all human groups to achieve that identity, it is just that they achieve security, and recognition, and so on. Therefrom the critically radical situation –radical in its etymological meaning of related to the root– of the need for justice among all other human needs. Therefrom too, my assertion that the closer the deprivation of a human need is felt to the deprivation of justice, the more protracted, deep-rooted, and therefore intractable a conflict appears.

A comparison might be helpful to exemplify this position. It is a comparison between two conflicts close to my feelings, therefore close to my knowledge.

A rather superficial look at the conflict between my country of origin, Argentina, and the United Kingdom, over the islands in the South Atlantic, may yield its formulation as a common dispute over a sheer –and virtually barren– piece of land. From a perspective of Argentina’s needs, it is utterly improper and indefensible to consider it as a need for a "place under the sun" objectively speaking: Argentina’s territory is a large and mostly uninhabited one, and no Argentinean lives in Malvinas Islands. Notwithstanding these undeniable facts, it can be safely stated, that no solution to the conflict seems possible unless the Islands go back under Argentine sovereignty.

Four years before Malvinas’ War in 1982, Argentina was at the edge of an armored conflict with her neighbor country, Chile, over three small Islands laying either at the South —from Chile’s position— or at the East —from Argentina’s position— of the Beagle Channel. The origin of the dispute goes back to the end of the past century, when a Treaty had been signed, which established that all the Islands to the East of Beagle Channel were part of Argentina’s territory. (Surprisingly, the dispute in 1978 was about what the course of Beagle Channel was!).

After a lengthy —yet successful in the end— Vatican mediation, the dispute was definitively settled and a new treaty was signed that clearly states that the said Islands are part of Chilean territory. In the heat of the discussions in the Parliament and in the public opinion, the Argentine president at the time called for a public referendum to vote for or against passing the law required for the Treaty’s approval. The referendum favored the agreement by an overwhelming majority.

The certainty that the same experience is downright impossible in the case of Malvinas Islands calls for reflection. What makes both cases so different? Evidently, it cannot be an objective basic human need for territory, which in both cases is equally indefensible.

The first difference is historical: whereas Beagle’s Islands were desert lands peacefully occupied by Chilean people, Malvinas Islands were forcefully taken after a short battle against their meager garrison and the Island’s Argentine Governor and his family were sent back to Buenos Aires.

Another difference is strictly cognitive: when the conflict with Chile erupted in 1978 the huge majority of Argentine population had no knowledge of the existence neither of the Islands nor of the dispute. Instead, Malvinas’ geography and history are studied at the primary level of education; they are a national concern since their restitution as part of the whole Argentine land is perceived as a necessary step towards the final shaping of the Argentine identity. Whether they are a national concern because it is taught as such, or it is taught as such because they are a national concern, is probably something impossible to know, and I doubt whether it really matters. What really matters is the perception. Thus we go back to the "subjective" or "cognitive" component in basic human needs.

Nevertheless, perceptions are based on facts, and in this case, the fact of a violent occupation, as I said before, made a huge difference in the social perception of the issue. Fisher (1990) mentions dignity as one of the undeniable rights that social groups have, and force is never exerted without detriment to somebody’s dignity. Dignity is also perceived as a matter of justice, because justice is defined as ‘giving to each one what to each belongs’, and dignity is due to every human being, whether individually or socially considered. This can be the key to grasp the depth of a community’s sentiment and to understand how and why a sentiment can last as long as over one and a half century, and will probably continue to last because, as Mitchell (1990) keenly points out, the ending of 1982’s War was in the end nothing but a truce.

It is in this context that PF’s strong statement –"I don’t care a damn for this small piece of land!" (WN, page 99)–, emerges in a somewhat more revealing light. It is not the land itself what counts, but the outraged feeling of dignity of a people, represented in a piece of land, which deprivation is perceived as unjust.

As I mentioned before, justice is traditionally defined as "giving to each what to each belongs". It is easy to say; it is not easy at all to figure out what belongs to whom. Anyway, until proved otherwise, we should part from the assumption that there is no definitive way to determine a perfect distribution of satisfiers for each human need. In other words, we assume that there is no such a thing as ‘perfect justice’, not in this world at least. "Since, even at best, the negotiated agreement involves compromises reflecting the strengths and weaknesses of both parties, it rarely conforms to absolute principles of justice." (Kelman, 1996, page 106)

The tension between Peace and Justice

This tension between the two principles in the micro-process of the PSW is positive in a sense, because it somehow reflects the real-world tension between justice and peace. It also reflects other tensions straining the relations on the macro-process level, like the one, for instance, between the urgency of the satisfaction of the most poignant needs and the satisfaction of the need for an independent state and land (in my view, instrumentals, pursued in order to achieve higher goods, or to satisfy deeper needs).

Peace can perfectly be considered as one of those implicit basic human needs, stemming from that common root of justice, for it is a matter of justice that people have a right to live in peace. Nonetheless, in an imperfect world where perfect satisfaction for human needs is presumed unattainable, we are bound to regretful and painfully admit that a compromise between justice and peace needs to take place. Still, I consider it as crucial –in a way that is absolutely impossible to overstate– to realize, and especially for parties to a conflict, to realize that the more perfectly a sense of justice is fulfilled, the more perfect will also be the peace achieved.

And this leads us to a core question in this analysis: Is this tension between the principle of equality and the "non-fault principle" constitutive to the dynamics of the PSW, or is it rather a mere reflection of that tension taking place in the macro-process?

In the macro-process, I believe to see this tension strenuously operating in the divisive line between the issues subject to the peace process and the so-called "final status issues". "Negotiations in the spirit of interactive problem solving are well suited, however, to achievement of what Walid Khalidi (1979: 155) has called ‘pragmatic justice’, which ‘takes cognizance of the imperatives of both equity and reality’ and ‘embraces both the changes brought about by the evolution of time and the historical context in which the changes took place’" (Kelman, 1996: 106). There are many ways to present the same dilemma, which I perceive as the same only one: the ‘imperative of equity’ is nothing but the need for justice, whereas the ‘imperative of reality’ is the recognition of the impossibility to encounter both perfect-justice and perfect-peace together in the real world.

I strongly felt this tension reflected in the Workshop in three different ways: a tension within the Palestinian side, a tension within the third party, and a tension between two seemingly opposing needs.

The tension in the Palestinian side

There was a neat gap between two currents within the Palestine side. One was the ‘political’ current embodied by PM’s position, which resembled the realism of the PLO’s goals. The emphasis of this current was on the peace process, on the independent state and on the land. The other current was roughly represented by the discourse of the other three participants, with accidental differences of tint among them. They advocated for the somewhat less realistic goals that mainly concern the actual people’s needs, rather than the needs of the political leadership. This was evidenced, for instance, by PV’s eager insistence on the right of return, warmly supported by PL and PF (in his case, maybe more as a by-product that would come together with the achievement of a redressed sense of dignity and justice).

PV: ". . .most of the Palestinian top leadership are not aware of what is happening. . .from what I have seen, even before the Intifada there were no real problems"

PF: "There was, there were real problems: occupation"

DH: (looking at PV) "What did you want to say?"

PV: "The occupation, I know, was a problem, but people were visiting each other and buying from one another (etc. . .living a normal life)" (page 75)

Although now PF seems to oppose PV’s statement, it is very akin to one he made earlier, during the pre-workshop session: "Yes, what I found out was before 1993 [before the Intifada] we were better off . . . Do we want to live in ghettos for the idea of a state?. . . Was it worth it, was it what we fought for? So many people have died. . ." (WN, page 26). And these concerns are of the same kind so vehemently raised by PL at the very outset of the Workshop, about the so called ‘closures’ or the use of water, at the same time lining up with her two colleagues in her perception of the current reality: "The facts on the ground in ’98 are interesting. [You think] we are better off [which is not really the case]" (WN, page 44).

PM, instead, does not seem enthusiastic in his support of the right of return, that seemed to be constantly hindering the dialogue within the workshop, and has been put as a final status issue in the macro-process:

PM: "If I can just pick up again on two major needs and concerns raised by my colleagues. . . on, Israel has the right to allow all Jews to return to Israel. . . If you allow 12-18 million people to come and live in this strip of land. . . it would be a humongous demographic concern, and a security issue, especially to the neighboring states. . . if you would give the Palestinians the same right, the 4.6 million, to come and live in what will be Palestine. . . what will that mean to the region. What resources will accommodate such (. . .) We can talk later on what most of this means".

It is going down this line of reasoning that the underlying principles and purposes of the problem solving workshop might become suitable for the use of politicians, to turn it into an elegant scapegoat for their mindlessness towards the real problems and necessities of their people. Yet, the approach is meant to fill the vacuum left by the official processes of negotiation, where no room is made for direct interaction of members of the communities in conflict as ‘members of the communities’, and not as official representatives of a government or political leadership.

The safeguard of the process against this danger, is precisely its paradigmatic commitment with equality, and specifically, with equality in the serious consideration that both sides’ sets of needs are guaranteed to be given. Anyway, by tilting the scale towards the side of the "non-fault" principle, the third party incurs the danger of furthering one specific political agenda in the dynamics of the discussion: in this case, the predilection for the politically ‘realistic’ goals pursued by the Palestinian leadership in the Oslo peace process.

The tension within the Third Party

This tension was, precisely, triggered by the dilemma posed by the seeming clash between the two principles, and the imperative need to give preference to one or the other.

On the one hand, great pains and long times were taken to realize that a basic need put on the table by one of the parties was in high risk of being overlooked. Only on Sunday, the day after the issue was raised, there was a clear acknowledgement of the need from the third party. ". . .you have profound divergences, and nevertheless (you can) come to agreement on practical matters. But in the long run it would not serve these two communities to completely shove these two issues under the carpet, if there is going to be reconciliation. . . but the issues will still be there because we will still need to find a way for these societies to live together because reconciliation requires addressing these issues" (WN, page 95).

On the other hand, however, the quickest reflect was to skip the disturbing matter: "How about you frame the second concern?" (WN, page 73). . . And they started talking about settlements. One of many examples of how the third party was afraid of so open a confrontation, and rushed to get through it as soon as possible. PV will point it out almost immediately: "You are talking about needs. . . I’d like to emphasize needs for refugees to return. . . I mean for all Palestinians to return. . . it was disregarded in this session. . . it should be emphasized. . . I mean the whole refugee problem until now. . . solved how? What? That’s another question. The needs for refugees to return. . . when we talk about solutions. . . the Palestinians of 1948 who left, have a right to decide for themselves. . . or to be compensated. . . and if needed to come back: something should be done. . ." It is worth noticing the urgency in the tone of these remarks. She seemed afraid that the issue was going to pass overlooked; and, as I said before, this issue is an immediate consequence of the admission of responsibility for past wrongdoings. IE’s repeated argument that she did not need "1948" to recognize Palestinians "an inalienable right in 1999" (WN, page 108), does not sustain itself. It is easy to recognize a right in general, and it does not take an admission of responsibility; but it takes responsibility to acknowledge your character as a debtor. The inalienable right of Palestinians in 1999 is completely useless unless somebody admits to be the debtor for those rights, character that can only be found in the consideration of the past.

In the end, the application of the non-fault principle prevailed, the choice alone that allowed for the continuation with the treatment of the agenda. After recognizing that ". . . to bring up these needs is essential. . ." the third party states: "but not a good thing to try and do it in the time available here (. . . ) my recommendation is to go ahead . . ." (WN, page 103).

Conclusion: A tension between Principles or a tension between Basic Needs?

The third way in which I believed to see the tension between peace and justice reflected within the dynamics of the Workshop, was a tension between two seemingly opposing needs from either party. If it is true that basic human needs are not inherently zero-sum in nature (Burton, 1988, Kelman, 1996) this opposition should be only apparent, which opens the argument to yet another question: Is this tension between needs a real-world tension or is it merely an undesired staging forced in by the tension between procedural principles?

This brings us back to the consideration of what human needs are, if a list of them is ultimately necessary, and if not, how to determine the validity and level of a manifest need.

There is a presumption of legitimacy set out in the promulgation of the ground rules of the PSW, by which the participants commit not to question the formulation of the other side’s set of needs. This commitment was severely and openly violated by the Israeli side, as I stressed before. But also the Palestinians did so, albeit in a quite different, veiled fashion. Both violations are strained consequences forced by an outside, real tension between peace and justice.

The need for peace and the crude realization of the weaknesses and defeats on their part, drove the Palestine leadership to adopt what I called before the ‘politically realistic goals doctrine’ epitomized in PM’s words: "We went to Oslo not because we wanted peace, but because we thought peace was the only alternative" (WN, page 27). Paradoxically, this compromise with the dictates of the real world –in some way, abandonment or lessening in the best case, of the imperatives of justice–, seen as the only way to peace from the Palestinian leadership, constitutes at the same time a formidable obstacle to peace as perceived from the Israeli side. But nobody seems to realize this!

From the Israeli view-point, an imposed peace would be worse than the present statu-quo that, short of open warfare, looks a lot like a militarized "peace". The irony of this reality is that it constitutes one of the major Israelis’ concerns: an imposed peace would be utterly unable to provide them with satisfaction for two paramount needs, anchored at the core of their communal identity –the needs for security and recognition. The need for security, because deep inside, Israeli society knows that without a ‘real’ (not imposed) recognition of its right to exist, and to exist as a Jewish state with sovereignty over a concrete piece of land, there will never be a real assurance for a durable peace.

From the ignorance to this ironic reality, stem the forces that drove the process in the Workshop into a vicious escalatory dynamic. Useless were, in the end, all the efforts from the three parties to get over the issue perceived as a hindrance for the process. It kept on surfacing once and again. The trust was lost.

What happened during the workshop, in my view, was the result of the combination of the two currents in the Palestinian side talking at the same time. The political discourse represented by PM in the outset, with its stubborn and evidently insincere compromise with the recognition of the Israeli state, became bluntly disclosed by the honest stance represented by PF’s rhetoric: "And now I’m accepting you. I accept you the minute I sit with you and say I’m willing to share land with you. You have the power, the black bag to cover my head, the handcuffs, what are you going to do about it. It’s not about acceptance, you are accepted. What are your concerns? (PF, pages 53-54).

PM himself was already disclosing the same, maybe unknowingly, when he uttered the phrase, already mentioned, about the spirit with which Palestinians approached the negotiation table in Oslo. But if inadvertently in a first moment, his position soon became blatantly obvious: "To ask the Palestinians to give all of these feelings that we have accumulated over 40-50 years, and to become priests and angels over night in order for you to feel they accepted you is asking too much. You’re asking the victim here, after beating them almost to absolute destruction, to be reborn again and to reincarnate and get rid (of) all the feelings and get ‘IM, I accept you, you are great’ is too much" (WN, page 54).

They did not seem to realize that theirs was also a clear rejection of the legitimacy of the Israeli claim to a need for acceptance in the way they seek it, not as victorious power, not as occupiers. They were, inadvertently maybe (or maybe not), thwarting all Israeli hopes for a recognition –and together with it, security and peace– in a way similar that Israelis were thwarting all Palestine hopes to fulfill their desires for justice. And the coup de gr­ ce came, paradoxically again with PM’s conclusive statement: "You cannot legislate conscience. You can’t change the hearts of people. . . It will take many generations to change." (WN, page 69)

Deep in their hearts, Israelis felt this was the end of their hopes: there is no possible way to get the kind of reassurance they long for. It would be impossible to really change, "legislate the conscience", the minds of people. No matter what is decided on the negotiation table they will still be feeling the way PF does: the establishment of the state of Israel was a crime.

Paradoxically –just another paradox among the multitude of them–, in the same way that the Israelis’ definitive refusal to admit any wrongdoings in the past does not necessarily imply an absolute denial of a responsibility for compensation of refugees (and, who knows, maybe even right of return), the Palestine conviction about the perpetration of a crime in the constitution of the Israeli state does not necessarily imply an absolute insincerity in their recognition of its legitimate right to exist.

Maybe when both realize that there has to be a compromise between peace and justice, that there is not perfect justice in this world, neither is there perfect peace, then they will be ready for a real reconciliation. Of course, Palestine will have to live with an imperfect satisfaction of its need for justice; but also Israel will have to reduce its expectations for perfect satisfaction of its need for peace. There is a Spanish saying –I am sure there is an equivalent in English–: "the better is enemy of the good". Maybe that is the place where both parties have to compromise: giving up the ‘better’ peace —the ‘better’ justice–, for the benefits of just a ‘good enough’ peace –just a ‘good enough’ justice.

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