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Terrorism

Deprivation of Nationality as a Counterterrorism Response in the UK

Janakan Muthukumar

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Since the emergence of the Islamic State (IS), an estimated 21 per cent of its 30,000 foreign fighters reportedly travelled from Europe to Syria and Iraq to join IS and participate in the conflict.  Such phenomenon raises concern over the stability and the security of the nations from which the foreign fighters are recruited as these radicalised fighters may ‘may pose a serious threat to their States of origin … transit…travel, as well as states neighbouring zones of armed conflicts’ according to United Nations (UN) Security Council Resolution 2178 (2014).  The resolution further called upon Member States to co-operate in restricting the movements of foreign fighters.

In response, States enacted laws not only restricting the movement of foreign fighters but also penalising actions that are considered a potential threat to national security and interests.  These laws conferred expanded power of surveillance on intelligence and law enforcement agencies; they also restricted immigrant and non-citizen access to the state territory by limiting the right to have a passport and, in more extreme cases, restricted the right to citizenship.  However, denationalization not only affects a person’s right to protection, freedom of movement and political participation as he no longer eligible to enjoy the rights and protection provided under the national legal system, but also creates debate that the state is provided an illegitimate enhancement of power ‘at the expense of all citizens and citizenship itself.’ In this context, this essay criticises the scope of counterterrorism laws in the United Kingdom (UK) that enable the deprivation of nationality on security grounds that cannot be justified as an effective counterterrorism mechanism as they would render individuals’ stateless.

Violation of Human Rights

Deprivation of nationality causes a severe erosion of human rights, including the right to life under article 2, and freedom from torture and other inhuman treatment of punishment under article 3 of the European Convention on Human Rights (ECHR). Although the UK government indicates regularly that it has ‘shown itself to be committed to deport foreign nationals involved in terrorist activities in this country fully respecting our human rights obligations’,such commitments have not been much effective. In some cases the UK government went a step further and required a Memorandum of Understanding to formally assure the receiving state would comply with the human rights’ norms of the deportees. However, this set of assurances is highly questionable in cases where deportees are sent back to countries that have poor human rights records, such as Yemen and Syria. In Abu Qatada, the Strasbourg Court was convinced that a mere Memorandum of Understanding may not prevent the violation of article 3 of the ECHR and not assure the right to fair trial because any confession obtained by torture is admissible in Jordan.  Further, in states where the executive overly influences the judiciary, there can be no judicial protection or remedies available to the deportees, which fundamentally undermines the principle of the universal protection of human rights.

International law implications

International law forbids any arbitrary deprivation of nationality. According to the 1961 Convention, no State may deprive ‘any person or group of persons of their nationality on racial, ethnic, religious or political grounds’. However, articles 5–9 of the 1961 Convention prescribe range of principles for withdrawal of nationality, particularly the deprivation of nationality to serve a legitimate purpose. In relation to the deprivation as an external act, the international law impacts the rights and interests of other States. In the context of the UK, such deprivation of citizenship impacts the rights and interests of other States in the context of deportation, refusal and re-admission, prosecution of international crimes and application for protection abroad.  This part of the essay focuses on the external act of deprivation and criticizes how in each case the UK’s decision to deprive nationality is problematic under international law.

This must also be seen in connection with the International Law Commission’s (ILC) Draft Articles on the expulsion of aliens, whereby article 9 prescribes for the ‘deprivation of nationality for the sole purpose of expulsion. A State shall not make its national an alien, by deprivation of nationality, for the sole purpose of expelling him or her.’  In the Commentary, the ILC noted that ‘deprivation of nationality, insofar as it has no other justification than the State’s desire to expel the individual, would be abusive, indeed arbitrary within the meaning of article 15, paragraph 2, of the Universal Declaration of Human Rights.’  However, it is to be noted that the article does not intervene in the operation of any national legislation for the deprivation of nationality.

This is further affirmed in the General Comment on article 12 of the International Covenant on Civil and Political Rights (ICCPR), where the Human Rights Committee noted that the right to enter one’s own country is more than a concept of nationality. General Comment No. 27 on the Freedom of Movement extended this view, noting that even if deprivation is possible, it will not put the individual outside the right to enter and reside in that country, as that is his ‘own country’.  In this context, the deprivation of nationality can be seen as an illegitimate act for a permanent deportation. However, in legal discourse, no State has the right to hand-wash its duties to the deportee, as his right to remain in the country would exist even after his nationality is deprived. However, in the real world, this has not been the case, because the border agencies have never allowed citizens whose nationality was deprived to re-enter the country.

In cases where extradition is required under international law, the UK is obligated to extradite the person ‘without exception whatsoever and whether or not the offence was committed in its territory, to submit the case without undue delay to its competent authorities for the purpose of prosecution…’.  Article 5 of the UN Convention Against Torture (CAT), to which the UK is a party, is one example of the international obligation to extradite a suspect. Further, the Questions Relating to the Obligation to Prosecute or Extradite case is an example of the State’s responsibility. There, Senegal was found liable for State responsibility under articles 6(2) and 7(1) of the CAT against Belgium.  As such, the UK depriving nationality and deporting citizens who are potential suspects of international crimes may cause the UK to violate its obligation to extradite and may lead to its the UK’s liability for its ineffective approach to countering terrorism.

Further, the UK is one of eight parties to the 1961 Convention. Under part 14 of the Statement of Changes in Immigration Rules and of the new Rule Nos 401 and 403, while an individual ‘satisfies the requirements of Article 1(1) of the 1954 United Nations Convention relating to the Status of Stateless Persons, as a person who is not considered as a national by any State under the operation of its law….’  In the event when the other parties to the 1961 Convention may not receive the individual, whose nationality is deprived by the UK, the UK will be left with an obligation under the 1961 Convention to readmit the individual in order to prevent a condition of stateless to the individual. This may reflect on the reputation of the UK, on the one hand, for prosecuting an ineffective approach that deprives the nationality of the individual and, on the other hand, as a signatory without complying in good faith with the 1961 Convention.

Theoretical paradox

First, the deprivation of nationality is an unprecedented blurring of the framework of security policies, as it can be invoked without any trial or criminal conviction relating to terrorism. It is on the basis of a dominant logic of prevention based on the logic of suspicion. However, it is also an echo of the colonial history of governance by racialized conception of social order, where the citizenship is not a secure status, but a reward for conformity to the bounds of defined ‘acceptable behaviour’. This resort to deprivation constitutes the securitization of citizenship as a policy, where the pre-crime preventive paradigm is encouraged as an option to counter the new definition of ‘radicalization’, which includes political violence, holding views against the government and ‘vocal opposition to (…) British values’.  Although the notion of civic citizenship involves a more inclusive national identity compared to the legal definition of citizenship and belonging based on ethnicity, the deprivation of nationality as a counterterrorism measure nevertheless creates normative boundaries of exclusion and a hierarchy between the ‘good and tolerated’ citizenship and the ‘failed’ citizenship.

Second, it is the State that has the fundamental duty to provide security for its citizens. Permitting the deprivation of citizenship simply allows States to disregard the consequences. Being statelessness without diplomatic protection or conveyance by passport renders the deportee in an extremely vulnerable position to abuse. A good example is the 16 British nationals whose passports were revoked when they were abroad: two were killed in a drone attack by the US, one was kidnapped, and one was rendered by US security services.  While there has been debate over whether denationalization is an appropriate punishment, the position that lets an individual remain stateless is condemnable.

Third, the deprivation of citizenship creates a situation where instead of citizens having the sovereign power to choose their government, the government chooses who they wish to govern; deprivation is no longer based on ‘conductive to the public good’, for as Lord Slynn notes in Secretary of State for the Home Department v Rehman, ‘there is no definition or limitation of what can be “conducive to the public good” and the matter is plainly in the first instance and primarily one for the discretion of the Secretary of State.’ This phrase therefore provides an ill-defined ground for the UK government to deprive nationality of an individual and at the same time create ‘a dubious and shifting hierarchy of citizenship’.

Conclusion

Depriving the nationality of citizens on mere suspicion for links with terrorist organisations as a counterterrorism mechanism has failed from both legal and rights-based perspectives. This essay concludes there are four main reasons that reflect the deprivation of nationality problem. First, it disrupts the UK’s international commitment to reduce statelessness, and its obligation under the UN Security Council Resolution to bring suspects of terrorism to justice. Second, it undermines the UK’s commitment to uphold human rights and the rule of law as a liberal democratic state while countering threats against its national security and national interest. Third, revoking nationality is an ineffective security strategy against terrorism because of practical implications. In the same vein, the above analysis recognises that mere banishment and deportation could be a measure that may backfire the real intention in countering terrorism because it fails to address the root cause for the radicalisation. Such avoidance in the long term may produce counter activities against the state and keep the national security at constant risk. Fourth, the power of the UK to revoke the citizenship of naturalised citizens who have no second nationality—which causes stateless—thus creates a legal black hole, into which once an individual fall he cannot be pulled out.

Compared with the deprivation of nationality, the measures proposed by sections 1 and 2 of the CTA 2015 such as seizure of passport from personnel suspected of involvement in terrorism, and temporary exclusion orders are more effective because they involve some judicial intervention and temporary suspension of individuals within the UK, which means the state will have the power to retain the suspect whenever required. There are also other counterterrorism measures that, with the adequate intervention of judiciary, have been an effective security strategy against terrorism. Thus, this essay proposes that the UK must revoke its laws concerning the deprivation of nationality as a counterterrorism measure but alternatively introduce laws that would address issuing permits to return to the terrorist suspects on individual basis, set specific obligations to the individuals after return to the UK, set tribunal that could review the decision of temporary exclusion, and strict the terrorism prevention and investigation measures with consideration of enforceability, and upholding international law and obligations in the contemporary counterterrorism context that will make the UK counterterrorism response effective.

Janakan Muthukumar is a young academic, currently undertakes a research project at the University of Toronto on G7 commitments on International Security. He holds an LLM in International Law from the University of London, UK and a Master in Human Rights and Democratisation at the University of Sydney, Australia. His research focuses on armed conflicts, counterterrorism and counterproliferation.

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Terrorism

Gun Control: Lessons from the East

Devika Khandelwal

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28th April, 1996 is deemed as one of the darkest days in the history of Australia. The infamous and deadly Port Arthur massacre took place in the famous tourist spot of Port Arthur, Tasmania where a 28 year old Australian, Martin Bryant open fired with a semi-automatic weapon, killing many. Before the day was over, he had attacked people in different places killing 35 people and injuring 18 people in total. 

In the wake of this tragedy, government officials in each of Australia’s six states and two mainland territories decided to call a ban on semi-automatic and other military-style weapons from across the continent in almost 10 days after the massacre. The officials halted the import of these weapons and launched a nationwide program called ‘Gun-Buyback Program.’ Under this program, Australians were encouraged to freely give up their weapons and many of them agreed. The Australian government confiscated almost 650,000 automatic and semi-automatic rifles under this program. It also established a registry which kept a record of all guns that were owned in the country. It also introduced a new permit which became mandatory for all new firearm purchase.

These policies and reforms led to a significant decline in Australia’s firearm homicide rate and firearm suicide rate. Since the reforms took place, some experts believe that there has been an 80% drop in gun-related homicides and suicides. With limited access to guns and stringent laws put in place related to gun-purchase, number of mass-shootings and gun-suicides plummeted.

Recently, the world was shook by the deadly Christchurch mosque shootings that took place in New Zealand. There were two consecutive mass shootings which resulted in the death of almost 50 people. Six days after the attack, in a swift action, New Zealand announced a new ban on sale and distribution of a range of semi-automatic rifles and other weapons in the effort to curb gun violence. They also imposed a ban on ownership of previously-owned firearms and also initiated a buy-back program. Moreover, countries like Singapore, Japan, Taiwan and China have the lowest number of gun-related deaths in the world.

Simultaneously, western countries like the USA, Mexico, Brazil, Colombia, Guatemala and Venezuela account for almost half of all global deaths that occur from gun violence. In 2018 it was estimated that almost 250,000 number of global deaths happened due to gun-homicide or gun-suicide, and half of those deaths took place in 6 aforementioned countries. It is also estimated that suicide by shooting is on a rise and more number of people are using firearms to commit suicide each year. Over 150 mass shootings took place in the US alone in 2018 killing over 1,100 people and injuring as many. This devastation figure started a widespread discussion on gun-control in the US.

According to a research conducted by the Educational Fund to Stop Gun Violence, ease of access to a firearm during a vulnerable moment, higher firearm-ownership and loose gun legislations in a country have led to higher gun violence. In the USA, the last substantial gun-control legislation was imposed in 1994 which placed a federal ban on military style assault weapons for 10 years. However, this ban was not imposed on people who already owned these arms. When the ban was lifted in 2004, many Americans acquired military-style rifles which also became a popular choice of weapon for mass shooting. It is surprising that in many parts of the US, an American can easily purchase a military style rifle before they are legally allowed to buy beer. Many people also justify purchasing and carrying of weapons in the name of self-defence.

I am aware of the fact that the USA and many other western countries are bigger in size and population compared to Eastern countries, however with the growing number of gun-deaths, we have to underscore the importance of strict gun-control legislations and vigilant policies on ownership of gun. Moreover, background checks of people wanting to purchase guns and acquisition of permits by gun-selling stores should be made mandatory. If the USA could place a ban on gun-sale all those years ago, it can do it again. The government must find a way to work around USA’s Second Amendment and place stricter laws in relation with gun-ownership. 

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Who is Brenton Tarrant: Insight on the New Zealand Attack

Hareem Aqdas

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A misfortunate incident hit by surprise the usually peaceful city of Christchurch, New Zealand on Friday. The attacker, Brenton Tarrant, 28, Australian, accused of carrying out attacks on two mosques in Christchurch, resulted in the deaths of at least 50 people, all worshipping Muslims, including children, was charged with murder as he appeared in a district court on Saturday. A global debate has aroused on the fact that the charge merely speaks of the killer being accused of murder and not terrorism, which is another debate.

The event has sprung up international attention, with gun-laws of New Zealand being revised, investigations underway and multiple gestures and actions given by the Prime Minister of New Zealand Jacinda Ardern and globally in support of victims.  An incident as such has occurred in New Zealand after almost 30 years, taking the world by surprise.

The live video of the attack was uploaded by the attacker, which aired for almost 17 minutes- making plenty of room for criticizing the social media outlet for letting an act of violence being aired without action.

Tarrant, described by Australia’s Prime Minister Scott Morrison as an “extremist, right-wing, violent terrorist”, expressed admiration for other violent white nationalists and his intention to “create an atmosphere of fear” and to “incite violence” against Muslims.

In a 74-page so-called Manifesto, Tarrant wrote: “My language originated in Europe, my culture is European, my political beliefs are European, my identity is European and, above all, my blood is European” before the attack on the Internet. It details an anti-immigrant, neo-fascist ideology and deplores the so-called decline of European civilization. and described himself as an “ordinary white man.” Tarrant did not have a criminal history and was not on any watch lists in New Zealand or Australia.

A set of questions that arise in the wake of this unfortunate condition are: Who is responsible for the massacre of 50 people- The man behind the attack? The social media platform that aired live the attack for 17 minutes? The 26-minute delayed response from the New Zealand police and government, who already were informed about the “manifesto” of the attacker 9 minutes prior to the shooting or the immigrants who have been a source of the highly debated emerging “Islamophobia” globally. Moreover, why did the attacker perform the heinous attack and under what influence?

A possible explanation to the posed questions can be given by a phenomenon given under the area of terrorism and counter-terrorism. By definition, the attack was all that defines a “terrorist attack” but the attacker is slightly different to what a “terrorist” is defined as- rather, is a “lone wolf”.

A solitary actor, a terrorist of solitary actors, or lone wolf, is someone who prepares and commits violent acts alone, outside any order structure and without any group aid material. They can be influenced or motivated by the ideology and beliefs of an external group and can act in support of this group. These people do not have connections to any organization, but are self-auto rotated through the construction of a certain ideology from the accumulation and assimilation of knowledge by their own.

Lone wolves are hard to identify. These are normal people dwelling in normal conditions, usually showing no sign of violent behavior. Keeping such people under check is as hard as recognizing their lethal abilities. They tend to be more dangerous than terrorist organizations since they take by surprise through their actions, they’re neither under check or suspected or, as a matter of fact, identified.

The attacker- a lone wolf- was not known to police in Australia for violent extremism or serious criminal behavior. Three other suspects were detained along with Tarrant on Friday, but police now say he acted alone. He doesn’t classify under psychologically disturbed- as most western attackers are in such cases by any means.

Responding to his own question “Is there a particular person that radicalized you the most?”, Tarrant wrote: “Yes, the person that has influenced me above all was [US conservative commentator] Candace Owens… Each time she spoke I was stunned by her insights and own views helped push me further and further into the belief of violence over meekness”, having an “unhealthy narcissism” common among “terrorists”.

People with firm ideologies- as Tarrant- believe they are correct and it is hard to convince them otherwise (as religious ideologies e.g. Muslim ideology or nationalistic ideology e.g. Hindutva, Zionism etc). All writing over the attacker’s weapons, if read, explained and translated signify a certain incident where immigrants (particularly Muslims) have been a threat to the white, in acts of violence against the white race, justifying the attacker’s action for fighting against a group that threatens the existence of the white race.

In this situation, neither social media for airing live (not enough evidence on the attacker’s social media outlet to take prior action) nor the government (informed 9 minutes prior to attack, too small a gap for stopping a terrorist attack, not including a location or specific details) can be blamed for the incident as identification and keeping check is almost impossible.

In the case of the attacker, even after being convicted, believes has done nothing wrong, was smirking throughout the process of his detainment whilst making a hand gesture of white supremacy throughout, with the belief that he might get 27 years in prison just like Nelson Mandela and be awarded a Nobel Peace Prize.

The reason to this radicalization is unchecked information, quick and easy access has led to the production of numerous such lone wolves, who will unleash their preposterous ideologies into violent acts if the content that is available is not censored. Another step that may prove helpful is the production of correction centers as a strategy towards counter terrorism since just convicting and killing the terror mongers does not kill an ideology they were triggered by, but only glorifies and promotes it. These centers are particularly necessary in educational institutes, weapon clubs, online portals, social media and mainstream media etc. Immediate action is required globally with amendments in counterterrorism strategies reverting to psychological correction rather aggression against the violator, else wise, the world has no less Tarrants currently to deal with- but many more.

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Terrorism

The Impact of Words: Christchurch Shooting

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New Zealanders and Australians (two English-speaking Commonwealth nations closely knit by culture, geography and history) have been horrified by a major white extremist terrorist event in Christchurch, New Zealand, on Friday 15 March. 

Forty-nine Muslim worshippers, at Friday prayers in two Christchurch mosques six kilometers apart, were murdered in concurrent gun attacks led by an Australian far-right nationalist extremist, Brenton Tarrant, who filmed his whole attack from a head-held video camera while he shot worshippers at random with a semi-automatic weapon. Forty people were injured, some critically. Major mainstream and social media are being asked to remove Tarrant’s deeply evil video footage, but much of it had already got out online as was his intention. 

The mosques were unguarded, New Zealand having hitherto been entirely terrorism-free. Tarrant and four other unnamed persons involved, three men and a woman, who are believed at this stage to be New Zealanders, are under arrest. Tarrant’s trial is listed for April. A shaken NZ Prime Minister Jacinda Ardern vowed immediate government action to tighten NZ’s lax gun laws, to tighten NZ border controls, and to strengthen NZ-Australia intelligence agency information-sharing on extremist groups. 

Australian Prime Minister Scott Morrison, who faces an early election which has to be held by May, and which he is tipped to lose heavily, expressed sympathy and shock. He conspicuously visited Sydney’s most important mosque, in solidarity with Australian Muslim communities. But many Australians may doubt his sincerity in view of his and his Immigration Minister Peter Dutton’s long personal history of anti-immigrant and anti-Muslim public sentiments. 

Tarrant had issued a racial-hate manifesto online, minutes before his group’s attack began, calling for an end to all Muslim migration into Australia and NZ. His views are shared within a small but vocal group of white extreme nationalist extremists in Australia who hold provocative public meetings and seek out media attention. Such a meeting is still scheduled to go ahead today in Moorabin, Melbourne, at which Senator Fraser Anning from the state of Queensland will criticise Australia’s immigration policies. A counter-demonstration is planned in protest. Police will be present. 

At federal political level, Islamophobic and anti-immigrant views are most stridently represented by Senator Pauline Hanson’s minority One Nation Party and by Senator Anning, who was elected as a Queensland state senator on the One Nation Party ticket but subsequently broke with Senator Hanson. Queensland is a state characterised by high youth unemployment and a declining coal industry. It is a focus of far-right white nationalist extremism.

Anning, who is not expected to be re-elected, desperately seeks publicity. Just hours after the Christchurch shootings, he published a highly offensive media release blaming the shootings on Muslim immigration to Australia and NZ, alleging that the governments had created a climate of racial tension. His media release effectively endorsed much in Tarrant’s manifesto. It has been almost universally condemned in Australia. 

This well-planned politically-motivated mass murder is being compared to the Anders Breivik mass murder of young Norwegians in 2011. It is also being compared to recent targeted terrorist attacks, in US and elsewhere, on people at prayer in mosques and synagogues. 

Questions are being asked about context and coincidence. 

How was it possible for an Australian with known links to white supremacist extremist organisations in Australia to fly to New Zealand without NZ Security agencies being alerted to monitor him? How was it possible for his group to buy guns and ammunition in New Zealand without security agencies being alerted? Are Australian and New Zealand security agencies too focused on monitoring alleged threats from Islamist extremist groups, to the neglect of even more dangerous far-right white nationalist extremists? 

Also: the attack coincided with a day of major ‘school strikes’ and street demonstrations by many thousands of young people in all major cities around Australia, protesting at Australian federal and state governments’ inadequate climate change policies, including their failure to ban opening of new coal mines. Similar demonstrations were taking place in New Zealand, supported by PM Ardern. Australian PM Morrison had criticised the demonstrations as inappropriate on a school day. In any event, the NZ shooting tragedy totally eclipsed media attention to the young people’s climate change and anti-coalmines demonstrations. Was this planned by the perpetrators, and who might have advised them? 

Some critics claim, I believe correctly, that right-wing politicians who now dominate the governing party coalition, and right-wing mainstream media, have over recent years fostered and helped to generate a supportive climate for an anti-immigrant extremist movement in Australia, helping it to gain respectability and take root among economically depressed and politically alienated white Australian youth. These critics say that these politicians and media must now accept shared responsibility for fostering a political climate that encourages such terrible acts as the massacre of innocents in Christchurch. 

Senior police leaders in Australia have appealed to politicians and media to consider the impact of their words. I hope they will do so. 

Though this terrorist event has visibly shocked decent mainstream opinion in Australia and New Zealand, it may push race relations and immigration issues into greater prominence in the forthcoming Australian federal election. There is a danger of polarisation under Scott Morrison’s clumsy leadership: he could as in past Australian elections try to talk up racial fears to his party’s presumed advantage. 

Australia’s and New Zealand’s foreign policies are also coming under scrutiny in the wake of this attack. Both countries are members of the ‘Five Eyes’ Intelligence-sharing network. Their military forces are deeply enmeshed in US-led past and present military operations in Afghanistan, Iraq and Syria. Sophisticated US-Australian joint defence facilities at Pine Gap, Central Australia are believed to be in current use to assist US military targeting in Syria. The Australian arms industry is selling weapons technology to Saudi Arabia that is being used by the Saudi Air Force in lethal bombing operations against Yemeni civilians. 

The danger is that, after the initial public shock and horror at this attack has passed, the desperate and failing Morrison government may be tempted to exploit it to try to create a ‘national security’ and anti-immigration pre-election climate. The Labor Party Opposition and its leader Bill Shorten will need to watch its own words and policies in coming weeks. So will Australia’s mainstream and social media. 

I believe the lessons for all responsible governments and politicians are: firstly, to consider the impact of their policies and words on disaffected youth, and always to uphold inter-ethnic and inter-religious harmony; secondly, to task national security agencies to monitor equally extremist elements of all persuasions. I believe by both these yardsticks the Russian Federation has a very good record. I wish I could currently say the same of Australia. 

First published in our partner RIAC

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